SCHOOL  OF  LAW 

UNIVERSITY  OF  CALIFORNIA 

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Roscoe  Pound 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

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http://www.archive.org/details/equityitsremedieOObarniala 


EQUITY 
AND  ITS  REMEDIES 


By 

CHARLES  NEAL  BARNEY,  A.  M.,  LL  B. 

OF  THE  MASSACHUSETTS  BAK 


BOSTON 
G.  A.  JACKSON 
LAW  BOOK  PUBLISHER 
1915 


T 

1915 


Copyright  1915 

By  Charles  Neal  Barney 

Lynn,  Massachusetts 

All  Rights  Reserved 


G.  H.  &  A.  L.  NICHOLS,  PRINTERS 
LYNN,  MASSACHUSETTS 


PREFACE 

This  book  is  the  outcome  of  lectures  delivered  by 
the  author  at  the  Evening  Law  School  of  the  Boston 
Y.  M.  C.  A.  and  at  the  Law  School  of  Boston  Univer- 
sity, on  the  equitable  remedies.  The  justification  for 
putting  the  material  in  this  form  is  found  in  the 
expressions  of  gratitude  from  former  students  who 
have  been  good  enough  to  say  that  they  have  found 
in  these  lectures  citations  and  statements  of  principles 
inaccessible  in  any  text-book.  The  frequency  with 
which  the  author  has  turned  to  these  notes  for  cita- 
tions in  his  own  practise  has  convinced  him  that  others 
of  the  profession  may  be  able  to  find  assistance  from 
the  same  source. 

The  book  is  an  attempt  to  give  a  rational  outline 
of  equity  (exclusive  of  trusts  and  kindred  subjects) 
and  to  show  the  scope  of  the  equitable  remedies. 
It  does  not  attempt  to  deal  with  strictly  statutory 
subjects  or  with  equity  pleading  or  practice. 
While  the  citations  are  largely  drawn  from  Massa- 
chusetts cases  (and  Ames's  Cases  on  Equity),  it  is 
believed  the  subject  is  treated  in  such  a  way  as  to 
make  the  book  of  general  application,  useful  to  the 
student  or  practitioner  in  any  part  of  the  United 
States.  No  attempt  has  been  made  to  cite  all  the 
equity  cases  decided  in  Massachusetts,  although  cer- 
tain parts  of  the  subject,  not  covered  by  existing 
text-books,  have  been  treated  with  thoroughness. 
Special  attention  has  been  given  to  late  cases. 

In  preparation  of  this  work  the  author  is  indebted 
to  Henry  T.  Lummus,  Esquire,  of  Lynn,  for  the  use 
of  his  notes  on  certain  subjects,  and  to  Asa  S.  Allen, 
Esquire,  of  Boston  for  valuable  assistance  in  the  pre- 
paration of  material. 

C.  Neal  Barney. 
Lynn,  Mass.,  November  15,  1915. 


CONTENTS. 


CASES  CITED  n 

CHAPTER  I. 

PAGES  1  TO  11 

ORIGIN  AND  NATURE  OF  EQUITY 

A.  Historical. 

B.  Effect  of  Equity  Growth  on  Common  Law. 

C.  An  Outline  of  Equity. 

CHAPTER    II. 

PAGES  12  TO  23 

EQUITABLE    PARTIES. 

A.  Suits  Between  Husband  and  Wife. 

B.  Suits  Between  Partners. 

C.  Certain  Suits  Between  Parties  Having  or 

Claiming  Interests  in  a  Common  Subject 
Matter. 

CHAPTER  III. 
pages  24  to  38 

SOME  FEATURES  OF  EQUITY  JURISDICTION 
AND   PROCEDURE. 

A.  Plain,   Adequate  and   Complete   Remedy  at 

Law. 

a.  Its  absence  a  basis  of  relief  in  equity. 

b.  Its  presence  as  a  defense  to  equitable  pro- 

cedure. 

c.  Its  presence  in  some  cases  immaterial. 

d.  As  affecting  procedure. 

B.  The  Jury  in  Equity. 

C.  Equity  Acts  in  personam,  not  in  rem. 


CHAPTER  IV. 

PAGES  39  TO  51 

THE  MAXIMS. 

A.  Equity  will  not  suffer  a  wrong  to  be  with- 

out A   REMEDY. 

B.  Equity  follows  the  law. 

C.  Where  the  equities  are  equal,  the  law  will 

PREVAIL. 

D.  Where  interests  are  purely  equitable  and 

IN   OTHER   RESPECTS   EQUAL,    PRIORITY   IN   TIME 
GIVES    THE    BETTER    EQUITY. 

E.  Equity  treats  that  as  done  which  ought  to 

BE   DONE. 

F.  He  who  seeks  equity  must  do  equity. 

G.  He  who  comes  into  equity  must  come  with 

CLEAN   HANDS. 

H.  Equity  aids  the  vigilant. 


CHAPTER  V. 

pages  52  to  84 

SOME   DOCTRINES   IN   EQUITY. 

A.  Assignments. 

B.  Notice. 

C.  Estoppel. 

1.  Estoppel  by  Record. 

2.  Estoppel  by  Deed. 

3.  Estoppel  in  Pais. 

a.  From  Contract. 

b.  Equitable  Estoppel. 

D.  Equitable  Conversion. 


CHAPTER   VI. 

PAGES  85  TO  114 

SOME  SPECIFIC  GROUNDS  FOR  RELIEF 

A.  Accident. 

B.  Mistake. 

1.  Excusable  Ignorance  of  a  Material  Matter 

a.  Mistakes  of  Law. 

b.  Mistakes  of  Fact. 

2.  Mistakes  in  Written  Instruments. 

3.  Relief  Generally. 

C.  Fraud. 

1.  Jurisdiction. 

2.  Constructive  Fraud. 

a.  Apparent  from  the  Bargain  Itself. 

b.  Presumed  from  the  Circumstances  of 

the  Parties. 

c.  Transactions  Injurious  to  Third  Per- 

sons —  Fraudulent  Conveyances. 

d.  Transactions  Void  as  Against  Public 

Policy. 

3.  Remedies  in  Fraud. 

a.  Remedies  at  Law. 

b.  Remedies  in  Equity. 

CHAPTER   VII. 
pages  115  to  157 

SPECIFIC  PERFORMANCE  OF  CONTRACTS. 
A.   Affirmative  Contracts  Generally. 

a.  Contracts  about  Land. 

b.  Contracts  about  Chattels. 


c.  Stocks  and  Bonds. 

d.  Agreements    to    Arbitrate    and    to    Give 

Options. 

e.  Contracts   Involving  the   Performance   of 

Labor. 

B.  Negative  Contracts  Generally. 

a.  Involving  Personal  Service. 

b.  Limiting  the  Use  of  Property. 

c.  Agreement  not  to  Compete: 

1.  Express  agreements; 

2.  Agreements  implied  from  sale  of  good 

will. 

C.  Relief  for  and  against  Third  Persons. 

a.  Legal  Easements. 

b.  Certain  Covenants  Running  with  Land. 

c.  Restrictions  or  Equitable  Easements. 

D.  Statute  of  Frauds  —  Part  Performance. 

E.  Partial  Performance. 

F.  Time  the  Essence  of  the  Contract. 

G.  Marketable  Title. 
H.  Mutuality. 

I.    Necessity  and  Adequacy  of  Consideration. 
J.    Sundry    Defenses    and    Incidents    of    the 
Remedy. 

CHAPTER  VIII. 
pages  158  to  164 

INJUNCTIONS. 

A.  Generally. 

B.  Restraining  Legal  Prooceedings  and  Judg- 

ments. 

C.  Restraining    Illegal    Acts    of    Public    or 

Corporation  Officials. 


CHAPTER  IX. 

PAGES  165  TO  201 

INJUNCTIONS  —  SPECIFIC     REPARATION 
AND  PREVENTION  OF  TORTS. 

A.  Waste. 

B.  Trespass  and  Disturbance  of  Easements. 

C.  Nuisance. 

D.  Infringement   of   Patents,    Copyrights   and 

Trademarks.     Unfair  Competition. 

E.  Interference  with  Business  or  Contract. 


CHAPTER    X. 
pages  202  to  213 

PECUNIARY  RELIEF  IN  EQUITY. 

A.  Accounting. 

B.  Exoneration. 

C.  Contribution. 

D.  Subrogation. 

E.  Marshaling. 


CASES  CITED 


Aberthaw  Construction  Co.  v.  Cameron,  194  Mass.  208    .  193,  196, 

197,  199,  201 

Ackroyd  v.  Smithson,  1  Brown's  Ch.  503       78 

Adams  v.  Messinger,  147  Mass.  185        ...     27,  35,  118,  121,  124 

Adams  v.  Nichols,  19  Pick  275 88 

Adams  v.  Young,  200  Mass.  588  113,211,212 

Adderley  v.  Dixon,  1  Simons  &  Stuart  607 119 

Aetna  Life  Ins.  Co.  P.  Middleport,  124  U.  S.  534 210 

Agar  v.  Macklew,  2  Simons  &  Stuart  418 .       123 

Aleck  v.  Jackson,  49  N.  J.  Eq.  507      23 

Alexander  v.  Tolleston  Club,  110  111.  65 35 

Allen  v.  Allen,  213  Mass.  29 103 

Allen  v.  Barrett,  213  Mass.  36     136 

Allen  v.  Hunt,  213  Mass.  276 27,  30 

Allyn  v.  Allyn.  154  Mass.  570  84 

American  Bridge  Co.  v.  Boston,  202  Mass.  374 59 

American  Circular  Loom  Co.  v.  Wilson,  198  Mass.  182    .    .  102,190 
American  Lithograph  Co.  v.  Ziegler,  216  Mass.  287     .    .    .    .  54,  56 

American  Stay  Co.  v.  Delany,  211  Mass.  229       190 

American  Waltham  Watch  Co.  v.  U.  S.  Watch  Co.,  173  Mass.  85 

186,  188 
Anchor  Electric  Co.  v.  Hawkes,  171  Mass.  101         ....  126,  130 

Andrews  v.  Mines  Corporation,  205  Mass.  121 163 

Andrews  v.  Sparhawk,  13  Pick.  393 49 

Angier  v.  Webber,  14  Allen  211        131 

Anthony  v.  Valentine,  130  Mass.  119 41 

Appeal  of  Wenz,  126  Penn.  541 78 

Arndt  v.  Griggs,  134  U.  S.  316 37 

Arnold  v.  Brown,  24  Pick.  89       18 

Aroian  v.  Fairbanks,  216  Mass.  215 151 

Asche  v.  Asche,  113  N.  Y.  232 78 

Ascherson  v.  Tredegar  Dry,  etc.  Co.,  (1909),  L.  R.  2  Ch.  404       206 

Aspinwall  v.  Boston,  191  Mass.  441 163 

Athol  Sav.  Bank  v.  Bennett,  203  Mass.  480      67,  210 

Atkins  v.  Atkins,  195  Mass.  124 13,  14,  46 

Atkins  v.  Chilson,  7  Met.  398 177 

Atlantic  Bank  v.  Tavener,  130  Mass.  407      13,  15 

Attaquin  v.  Fish,  5  Met.  140      166,167 

Attorney  General  v.  Bedard,  218  Mass.  378      203 

Attorney  General  v.  Fitzsimmons,  35  Am.  Law  Reg.  100       .       176 

Attorney  General  v.  Hunter,  1  Devereux  Eq.  12      176 

Attorney  General  v.  Jamaica  Pond  Aqueduct,  133  Mass.  361        176 
Attorney  General  v.  Revere  Rubber  Co.,  152  Mass.  444         .       179 

Attorney  General  v.  Williams,  174  Mass.  476       176 

Ayer  v.  Ayer,  16  Pick.  327       13 

B 

Bacon,  v.  Sandberg,  179  Mass.  396 138,  141 

Badger  v.  Boardman,  16  Gray  559      138 


CASES   CITED 


Bailey  v.  Agawam  Nat'l  Bank,  190  Mass.  20 136 

Bailey  v.  Wood,  211  Mass.  37      107 

Baker  v.  Davie,  211  Mass.  429 213 

Baker  v.  Libbie,  210  Mass.  599 184 

Baker  v.  Selden,  101  U.  S.  99 183 

Baldwin  v.  Wilbraham,  140  Mass.  459 6 

Banaghan  v.  Malaney,  200  Mass.  46 116 

Barnard  v.  Lee,  97  Mass.  92 148,  149 

Barnes  v.  Boardman,  152  Mass.  391       207 

Barnes  v.  B.  &  M.  R.  R.,  130  Mass.  388    ...    .   144,  145,  146,147 
Barron  v.  International  Trust  Co.,  184  Mass.  440       ....       112 

Barrow  v.  Richard,  8  Paige  351       139 

Bartlett  v.  N.  Y.,  N.H.,  &  H.  R.  R.  Co.,  221  Mass.  530     .    .       164 

Bartlett  v.  Slater,  182  Mass.  208 123 

Bassett  v.  Percival,  5  Allen  345       131 

Bates  v.  Boston  El.  Ry.,  187  Mass.  328 211,  213 

Bates  v.  Norcross,  14  Pick.  224       63 

Batty  v.  Greene,  206  Mass.  561 99,  111 

Bauer  v.  International  Waste  Co.,  201  Mass.  197 30 

Baugher  v.  Crane,  27  Md.  36       167 

Beal  v.  Brown,  13  Allen  114 212 

Beekman  v.  Marsters,  195  Mass.  205 48,  193,  195 

Belknap  v  Belknap,  5  Allen  468     44 

Bemis  v.  Upham,  13  Pick.  169 175 

Benson  v.  Benson,  70  Md.  253 105 

Berliner  Co.  v.  Seaman,  110  Fed.  Rep.  30 124 

Bernard  v.  Adams  Express  Co.,  205  Mass.  254 72 

Berry  v.  Donovan,  188  Mass.  353       193,  194,  195, 198 

Berry  v.  Friedman,  192  Mass.  131       46 

Bigelow  v.  Ames,  108  U.  S.  10 145 

Bigelow  v.  Old  Dominion  Copper  Co.,  225  U.  S.  Ill     .   65,  66,  67, 

103 

Biggert  v.  Straub,  193  Mass.  77       37 

Billings  v.  Mann,  156  Mass.  203  28,  98,  99,  172 

Bisbee  v.  McKay,  215  Mass.  21       61,  62 

Bishop  v.  Palmer,  146  Mass.  469     129 

Blake  v.  Traders'  Bank,  145  Mass.  13 209 

Blanchard  v.  Cooke,  144  Mass.  207 57 

Blew  v.  McClelland,  29  Mo.  304 81 

Blinn  v.  Dame,  207  Mass.  159     55 

Blood  v.  Blood,  23  Pick,  80      63 

Blood  v.  Blood,  110  Mass.  545 20 

Blout  v.  Societe  Anonyme,  53  Fed.  Rep.  98      182 

Blount  v.  Wheeler,  199  Mass.  330       119 

Boardman  v.  Jackson,  119  Mass.  161      28 

Bodman  v.  American  Tract  Soc,  9  Allen  447       21 

Bolivar  Mfg.  Co.  v.  Neponset  Mfg.  Co.,  16  Pick.  247     ...       179 
Boston  Diatite  Co.  v.  Florence  Mfg.  Co.,  114  Mass.  69      .    .       159 

Boston  Ferrule  Co.  v.  Hills,  159  Mass.  147        174,  180 

Boston  &  Maine  R.  R.  v.  Sullivan,  177  Mass.  230     .    25,   169   171 
Boston  &  Worcester  St.  Ry.  Co.  v.  Rose,  194  Mass.  142    .   .       149 


CASES   CITED  XI 


Boutelle  v.  Smith,  116  Mass.  Ill         132 

Bowen  v.  N.  Y.  C.  &  H.  K.  11.,  202  Mass.  263 64 

Bowker  v.  Torrey,  215  Mass.  547 19 

Boyden  v.  Hill,  198  Mass.  477      93 

Brackett  v.  Perry,  201  Mass.  502 99,  109 

Brady  v.  Waldron,  2  Johns,  Ch.  148 167 

Brainard  v.  Conn.  River  Ry.  Co.,  7  Cush.  506 176 

Brande  v.  Grace,  154  Mass.  210      170 

Breed  v.  Berenson,  216  Mass.  397       155 

Brewer  v.  Boston  Theatre,  104  Mass.  378      164 

Brewer  v.  Herbert,  30  Md.  301         84 

Bresnihan  v.  Sheehan,  125  Mass.  11        15 

Bridge  v.  Conn.  Mutual  Life  Ins.  Co.,  152  Mass.  343  43,  44 

Bridgewater  Iron  Co.  v.  Enterprise  Ins.  Co.,  134  Mass.  433  92 

Brierly  v.  Equitable  Aid  Union,  170  Mass.  218        23,   57 

Briggs  v.  Sanford,  219  Mass.  572         107 

Brinkman  v.  Jones,  44  Wise.  498 62 

Brock  v.  Dole,  66  Wise.  140 167 

Bronson  v.  Coffin,  108  Mass.  175        136 

Brookline  v.  Mackintosh,  133  Mass.  215        178 

Brooks  v.  Brooks,  169  Mass.  38      45,  46 

Brooks  v.  Rosenbaum,  217  Mass.  172         170 

Brown  v.  Brown,  174  Mass.  197      15 

Brown  v.  Corey,  191  Mass.  189       203 

Brown  v.  Statter,  206  Mass.  119      100,111,112 

Brown  v.  Thissel,  6  Cush.  254  134 

Browne  v.  Niles.  165  Mass.  276       180 

Brownell  v.  White,  87  Md.  54      46 

Bruce  v.  Bonney,  12  Gray  107 94 

Bubb's  Case,  Freeman  Ch.  38      82 

Burk  v.  Schreiber,  183  Mass.  35 ,   .       152 

Burlen  v.  Shannan,  99  Mass.  200        ,   .         66 

Burleson  v.  Woodin,  212  Mass.  323        99 

Burnham  v.  Dowd,  217  Mass.  351       159,  193,  197,  198 

Burns  v.  Daggett,  141  Mass.  368         144,    146 

Burns  v.  Thayer.  115  Mass.  89 51 

Burrowes  v.  Locke,  10  Ves.  471        ,       100 

Burrows-Giles  Lithographic  Co.  v.  Sarony,  111  U.  S.  53        .       183 

Burt  v.  Tucker,  178  Mass.  493         185,  187 

Busiere  v.  Reilly,  189  Mass.  518      56,  105,  112 

Butcher  v.  Stapley,  1  Vernon  363 147 

Butler  t>.  Gleason,  214  Mass.  248        103,110 

Butterick  Pub.  Co.  v.  Fisher,  203  Mass.  122     .    .  45,  117,  126,  128 
Button  v.  Schroyer,  5  Wise.  598 80,  81 

C 

C.  A.  Briggs  Co.  v.  Nat'l  Wafer  Co.,  215  Mass.  100        .    .  188,  191 

Cadman  v.  Horner,  18  Vesey  10      155 

Caldwell  v.  Nash,  190  Mass.  507 13 

California  Fig  Syrup  Co.  v.  Stearn,  73  Fed.  Rep.  312     .   .   .        48 


XII  CASES   CITED 


Callaghan  v.  Myers,  128  U.  S.  617      183 

Campbell  v.  Cook,  193  Mass.  251        202 

Campbell  v.  Dearborn,  109  Mass.  130 42 

Campbells  Lima,  212  Mass.  11      101 

Campbell  v.  Seaman,  63  N.  Y.  568 174 

Canedy  v.  Marcy,  13  Gray  373 94,  96 

Cannon  v.  Barney,  59  Miss.  289      167 

Canton  Co-operative  Bank  v.  American  Central  Ins.  Co.,  219  Mass. 

132  .         76 

Capen  v.  Barrows,  1  Gray  376 16 

Carew  v.  Rutherford,  106  Mass.  1       191,  197 

Carleton  v.  Rugg,  149  Mass.  550 176 

Carr  v.  Silloway,  105  Mass.  543       20,  25 

Carson  v.  Dunham,  149  Mass.  52        35, 161 

Carter  v.  Ferguson,  58  Hun.  569 127 

Carter  v.  Phillips,  144  Mass.  100 150 

Carter  v.  Tanner's  Leather  Co.,  196  Mass.  163 212,  213 

Carteret  v.  Petty,  2  Swanston  323      35 

Cary  v.  Holmes,  16  Gray  127 207 

Case  v.  Minot,  158  Mass.  577      179 

Cassidy  v.  Mason,  171  Mass.  507 136 

Castlemain  v.  Craven,  22  Viner's  Abr.  523 167 

Central  Nat'l  Bank  v.  Copp.  184  Mass.  328      71 

C.  E.  Worden  &  Co.  v.  California  Fig  Syrup  Co.,  187  U.  S.  516  187 

Chadwick  v.  Covell,  151  Mass.  190 53,  127,  185,  187 

Chamberlain  v.  Walker,  10  Allen  429 17 

Chandler  v.  Brainard,  14  Pick.  285 212 

Chandler  v-.  McDonald-Weber  Co.,  215  Mass.  365       ....       123 
Chapman  v.  Banker  &  Tradesman  Co.,  128  Mass.  478  ...         31 

Chapman  v.  Cole,  12  Gray  141 92 

Chase  v.  Phillips,  208  Mass.  245  103,  107 

Chesman  v.  Cummings,  142  Mass.  65         151 

Chicago  St.  Co.  v.  Car  Co.,  139  U.  S.  79       210 

Childs  v.  Boston  &  Maine  R.  R.,  213  Mass.  91     .    .    .  135,  136,  141 

Church  v.  Winton,  196  Penn.  107       42 

Chute  v.  Quincy,  156  Mass.  189      93,  95,  116,  155 

Citizens'  Loan  Ass'n  v.  B.  &  M.  R.R.,  196  Mass.  528     ...       126 
City  Bank  of  New  Haven  v.  Wilson,  193  Mass.  164    ...    .         60 

Clark  v.  Delano,  205  Mass.  224       102 

Clark  v.  Flint,  22  Pick.  231       27,  28,  120 

Clark  v.  Holden,  7  Gray  8 166 

Clark  v.  McMahon,  170  Mass.  92       107 

Clark  v.  Patterson,  158  Mass.  388 14 

Clark  v.  Storey,  208  Mass.  36      112,  204 

Clarke  v.  Fay,  205  Mass.  228 56 

Clarke  v.  Ramuz,  L.  R.  1891,  2  Q.  B.  456 83 

Clayton  v.  Ashdown,  9  Viner's  Abr.  393 152 

Clerk  v.  Boston,  179  Mass.  409       93 

Clermont  v.  Tasburgh,  1J.  &  W.  112         156 

Coates  v.  Lunt,  210  Mass.  314 87 

Coates  v.  Lunt,  213  Mass.  401 94,  96 


CASES  CITED  XIII 


Coats  p.  Merrick  Thread  Co.,  149  U.  S.  562 189 

Cobb  p.  Rice,  130  Mass.  231 20 

Codman  p.  Bradley,  201  Mass.  361 141,  143 

Cogent  v.  Gibson,  33  Beavan  557        119 

Coggan  p.  Ward,  215  Mass.  13        105 

CoggsweU  v.  Newburyport  Inst,  for  Sav.,  165  Mass.  524  21 

Colby  p.  Shute,  219  Mass.  213 63 

Cole  v.  Bates,  186  Mass.  584       202 

Cole  v.  Killam,  187  Mass.  213      149 

Cole  v.  N.  E.  Trust  Co.,  200  Mass.  594 73 

Cole  p.  Reynolds,  18  N.  Y.  74     16 

Coles  p.  Trecothick,  9  Vesey  234 154 

Colonial  Development  Co.  p.  Bragdon,  219  Mass.  170    .   .   .       113 
Conant  p.  Boston  Chamber  of  Commerce,  201  Mass.  479      .        66 

Conant  p.  Evans,  202  Mass.  34       73 

Conn.  Mut.  Life  Ins.  Co.  p.  Cook,  219  Mass.  222 21,  22 

Connell  p.  Reed,  128  Mass.  477       48 

Connihan  p.  Thompson,  111  Mass.  270      75,155 

Consolidated  Elec.  Storage  Co.  p.  Accumulator  Co.,  55  Fed.  Rep. 

485  .       182 

Cook  v.  Scheffren,  215  Mass.  444 98,  110 

Corbett  p.  Boston  &  Maine  R.  R.,  219  Mass.  351        ....        75 

Corliss  p.  E.  W.  Walker  Co.,  64  Fed.  Rep.  280        184 

Cotting  p.  Otis  Elevator  Co.,  214  Mass.  294 207 

Cottrefl  p.  Babcock  Co.,  54  Conn.  122       130 

County  Commissioners  of  Hampshire,  Petitioners,  143  Mass.  424 

51 

Covell  p.  Chadwick,  153  Mass.  263 187 

Cox  p.  Maiden  &  Melrose  Gas  Lt.  Co.,  199  Mass.  324  ..   .        29 

Crabtree  p.  Miller,  194  Mass.  123       172 

Creeden  p.  Mahoney,  193  Mass.  402      157 

Creely  p.  Bay  State  Brick  Co.,  103  Mass.  514      29 

Cressey  v.  Cressey,  215  Mass.  65        69 

Crockford  p.  Alexander,  15  Vesey  138 83 

Crompton  p.  Anthony,  13  Allen  33     105 

Crompton  p.  Pratt,  105  Mass.  255      205 

Cromwell  p.  Norton,  193  Mass.  291 31,  157 

Cromwell  v.  Parsons,  219  Mass.  299       160 

Cronin  p.  Bloemecke,  58  N.  J.  Eq.  313      181 

Crosby  p.  Clem,  209  Mass.  193       12 

Crower  p.  Crower,  29  Grattan  280      209 

Culbert  p.  Hall,  181  Mass.  24      34 

Cunningham  p.  Pattee,  99  Mass.  248 OS 

Curran  p.  Holyoke  Water  Power  Co.,  116  Mass.  90        ...       116 

Curre  p.  Bowyer,  5  Beavan  6       81 

Curtis  p.  Mundy,  3  Met.  405       62 

Curtis  Mfg.  Co.  p.  Spencer  Wire  Co.,  203  Mass.  448      .   .  170,  174 

Curtiss  p.  Sheffield,  213  Mass.  239      45 

Cutler  p.  Dickinson,  8  Pick.  386      68 

Cutter  p.  Cutter,  215  Mass.  94 7* 


XIV  CASES  CITED 


D 

Daly  v.  Foss,  199  Mass.  104 141 

Dana  v.  Third  Nat'l  Bank,  13  Allen  445        59 

Dana  v.  Valentine,  5  Met.  8 179 

Dana  v.  Wentworth,  111  Mass.  291 137 

Daniels  v.  Keokuk  Water  Co.,  61  Iowa  549      178 

Daniels  v.  Tearney,  102  U.  S.  415       70 

Davidson  v.  Sohier,  220  Mass.  270         141 

Davis  v.  Alden,  2  Gray  309      88 

Davis  v.  Bodlam,  165  Mass.  248      79 

Davis  v.  Chicago  Dock  Co.,  129  111.  180 101 

Davis  v.  N.  E.  Railway  Pub.  Co.,  203  Mass.  470        ....       194 

Davis  v.  Newton,  6  Met.  537       16 

Day  v.  Cooley,  118  Mass.  524  106 

Dean  v.  Emerson,  102  Mass.  480         130,  132 

Dean  v.  Mitchell,  4  J.  J.  Marshall  (Ky.)  451 83 

Dean  v.  Toppin,  130  Mass.  517       211 

Deans  v.  Eldredge,  217  Mass.  583 68,  69,  70 

Dearie  v.  Hall,  3  Russell  1 44,  60 

Debbins  v.  Foster,  219  Mass.  370        75 

Deere  v.  Guest,  1  Mylne  &  Craig  516        171 

Dehon  v.  Foster,  4  Allen  545        35,  160,  161 

Delano  t>.  Smith,  206  Mass.  365  165,  166,  168 

Delval  v.  Gagnon,  213  Mass.  203 55 

De  Minico  v.  Craig,  207  Mass.  593 196,  197 

Denholm  v.  McKay,  148  Mass.  434 51 

Dering  v.  Earl  Winchelsea,  1  Cox  318  (n)      48 

Deshon  v.  Wood.  148  Mass.  132      107 

Detroit  v.  Detroit  Citizens'  St.  Ry.  Co.,  184  U.  S.  368       .    .         29 

Dexter  v.  Codman,  148  Mass.  421       33 

Dexter  v.  Fuller,  217  Mass.  219 110 

Diamond  Match  Co.  v.  Roeber,  106  N.  Y.  473         130 

Dickerson  v.  Colgrove,  100  U.  S.  578     74 

Dickerson  v.  De  la  Vergne  etc.  Co.,  35  Fed.  Rep.  143        .    .       182 

Dickey  v.  Reed,  78  IU.  262       40 

Dietrichsen  v.  Cabburn,  2  Phillips  52 128 

Dillon  v.  Heller,  39  Kan.  599       34,  37 

Ditrell  v.  Carlisle,  48  Miss.  691        42 

Doane  v.  Preston,  183  Mass.  571         50 

Dodge  v.  Essex  Ins.  Co.,  12  Gray  65      42 

Doherty  v.  Allman,  L.  R.  3  App.  Cases  709      168 

Dole  v.  Wooldredge,  142  Mass.  161        33 

Donaldson  v.  Strong,  195  Mass.  429       60 

Dooley  v.  Cheshire  Glass  Co.,  15  Gray  494       70 

Dooley  v.  Merrill,  216  Mass.  500        83 

Dooley  v.  Wolcott,  4  Allen  406 68 

Doolittle  v.  Dwight,  2  Met.  561       212 

Dowling  v.  Betjemann,  2  Johnson  &  Hemming  544     ....       120 

Downey  v.  Gove,  201  Mass.  251  47 

Downey  v.  Hood,  203  Mass.  4 71,  172 


CASES  CITED  XT 


Downing  v.  Elliott,  182  Mass.  28 174,  175 

Dover  Stamping  Co.  v.  Fellows,  163  Mass.  191 186,  189 

Drake  v.  Rice,  130  Mass.  410  104 

Drake  v.  Taylor,  203  Mass.  528      174 

Dresel  v.  Jordan,  104  Mass.  407      152 

Drexel  v.  Berney,  122  U.  S.  241       74 

Duffy  v.  Hogan,  203  Mass.  397       123 

Duke  of  Somerset  v.  Cookson,  2  P.  Wms.  390      119 

Dun  v.  Lumbermen's  Credit  Ass'n,  209  U.  S.  20      183 

Duncan  v.  Goldthwaite,  216  Mass.  402      173 

Duncuft  v.  Albrecht,  12  Simons  189       121 

Dunham  v.  Presby,  120  Mass.  285      29,  47 

Dwight  v.  Hamilton,  113  Mass.  175        131,  132 

Dwyer  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  209  Mass.  419      ....       176 

Dyer  v .  Hargrave,  10  Vesey  505      148 

Dzuris  v.  Pierce,  216  Mass.  132 91,  93,  97 

E 

Eastern  Bridge  Co.  v.  Worcester  Auditorium  Co.,  216  Mass.  426 

37,  116 

East  India  Co.  v.  Vincent,  L.  R.  35  Ch.  D.  694       147 

Eaton  v.  Eaton,  15  Wise.  259       95 

Eaton  v.  Locke,  202  Mass.  324 176,  177 

Echelkamp  v.  Schrader,  45  Mo.  505       169 

Eddy  v.  Fogg,  192  Mass.  543       42 

Edwards  v.  Allonez  Mining  Co.,  38  Mich.  46       178 

Edwards  v.  Willey,  219  Mass.  443       203 

Edward  Thompson  Co.  v.  American  Law  Book  Co.,  122  Fed.  Rep. 

922  .  183 

Ela  v.  Ela,  158  Mass.  54       43 

Eldredge  v.  Mutual  Life  Ins.  Co.,  217  Mass.  444 104 

Eliot  Five  Cents  Sav.  Bank  v.  Commercial  Union  Ass.  Co.,  142 

Mass.  142  .     76 
Ellis  v.  Boston  H.  &  E.  Co.,  107  Mass.  1       ........        43 

Elmore  v.  Symonds,  183  Mass.  321 43 

Emerson  v.  Atkinson,  159  Mass.  356      17 

Emerson  v.  Cutler,  14  Pick.  108      79 

Emerson  v.  Udall,  13  Vt.  477       161 

Endicott  v.  University  of  Virginia  182  Mass.  156        ....        58 

Ensign  v.  Kellogg,  4  Pick.  1      117 

Equitable  Gas  Lt.  Co.  v.  Baltimore  Coal  Tar  Co.,  63  Md.  285     120 

Erhardt  v.  Boaro,  113  U.  S.  537      169,  171 

Essex  Trust  Co.  v.  Enwright,  214  Mass.  507        103,  190 

Evans  v.  Wall,  162  Mass.  478      62 

Evans  v.  Foss,  194  Mass.  513      142 

Ewald  v.  Ewald.1219  Mass.  Ill       46 


XVI  CASES  CITED 


F 

Fairbanks  v.  Belknap,  135  Mass.  179 21 

Fairfield  v.  Lowry,  207  Mass.  352       133 

Falardeau  v.  Washburn,  199  Mass.  363  202 

Fairbanks  v.  McDonald,  219  Mass.  291 66,  198,  200 

Fales  v.  Russell,  16  Pick.  315       7,  86 

Fall  v.  Eastin,  215  U.  S.  1        35 

Fall  River  v.  Aetna  Ins.  Co.,  219  Mass.  454 76 

Farnum  v.  Bascom,  122  Mass.  282         208 

Farrar  v.  Pillsbury,  217  Mass.  330      27 

Federal  Trust  Co.  v.  Bristol  Co.  St.  Ry.,  218  Mass.  63       .    .         68 

Felch  v.  Hooper,  119  Mass.  52 37,  81 

Ferguson  v.  Jackson,  180  Mass.  557       8 

Ferry  v.  Stephens,  66  N.  Y.  321      154 

Ferris  v.  Frohman,  223  U.  S.  424        184 

Finnish  Temperance  Soc.  v.  Raivaaja  Pub.  Co.,  219  Mass.  28      159 

First  A.  M.  E.  Soc.  v.  Brown,  147  Mass.  296        151 

Fiske  v.  Doucette,  206  Mass.  275 46 

Fitcher  v.  Griffiths,  216  Mass.  174      210 

Flagg  Mfg.  Co.  v.  Holway,  178  Mass.  83 189 

Flight  v.  Bollard,  4  Russell  299       152 

Flint  v.  Brandon,  7  Vesey  159      125 

Florence  Mining  Co.  v.  Brown,  124  U.  S.  385 59 

Florence  Sewing  Machine  Co.  v.  Grover,  etc.  Co.,  110  Mass.  1    120 

Flynn  v.  Butler,  189  Mass.  377        55 

Flynn  v.  Howard,  218  Mass.  245 66 

Fogg  v.  Price,  145  Mass.  513       123 

Forest  River  Lead  Co.  v.  Salem,  165  Mass.  193       22 

Forster  Mfg.  Co.  v.  Cutter-Tower  Co.,  215  Mass.  136    .   .  190,  191 

Foss  v.  Roby,  195  Mass.  292 131,  132 

Foster,  etc.  Co.  v.  Sayles,  213  Mass.  319       151 

Fothergill  v.  Rowland,  L.  R.  17  Eq.  132 118,  128 

Fourth  Nat'l  Bank  v.  Mead,  214  Mass.  549      29,  105 

Fowle  v.  Torrey,  135  Mass.  87 13,  41 

Fowler  v.  Strickland,  107  Mass.  552       211 

Francisco  v.  Smith,  143  N.  Y.  488      137 

Frank  v.  Sleeper,  150  Mass.  583      185,  186,  187 

Frankel  v.  Frankel,  173  Mass.  214      13,  14 

Franklin  v.  Greene,  2  Allen  519       33 

Freeman  v.  Freeman,  136  Mass.  260      18 

French  v.  Boston  Nat'l  Bank,  179  Mass.  404        119 

French  v.  Conn.  River  Lumber  Co.,  145  Mass.  261     ....      177 

French  v.  Peters,  177  Mass.  568      53,  54 

Frith  v.  Sprague,  14  Mass.  455 212 

Frost  v  Jacobs,  204  Mass.  1        172 

Frost  v.  Thompson,  219  Mass.  360     66,  67,  75 

Fuller  v.  Melrose,  1  Allen  166      50 

Fuller  v.  Percival,  126  Mass.  381         98,  110 

Furbur  v.  Dane,  203  Mass.  108 206 

Furnald  v.  Glenn,  64  Fed.  Rep.  49      162 

F.  W.  Dodge  Co.  v.  Construction  Inform.  Co.,  183  Mass.  62 127, 184 


CASES  CITED  XVII 


Gaff  v.  Cornwallis,  219  Mass.  228       119 

Gahn  v.  Wallace,  206  Mass.  39 36 

Galligan  v.  McDonald,  200  Mass.  299 118,  151 

Galway  v.  Met.  Elev.  Ry.  Co.,  128  N.  Y.  132 178,  179 

Gamewell  Fire  Alarm  Telegraph  Co.  v.  Crane,  160  Mass.  60        129 

Garcin  v.  Penn.  Furnace  Co.,  186  Mass.  405        150 

Gardner  v.  Denison,  217  Mass.  492        67 

Gardner  v.  Ogden,  22  N.  Y.  327      35 

Gargano  v.  Pope,  184  Mass.  571         8,  48,  102 

Gates  v.  Johnston  Lumber  Co.,  172  Mass.  495 168,  169 

Gay  v.  Gay,  5  Allen  157       205 

Gaylord  v.  Pelland,  169  Mass.  356      94 

George  v.  Kent,  7  Allen  16       62 

Geo.  G.  Fox  Co.  v.  Best  Baking  Co.,  209  Mass.  251  ...   48,  189 

Geo.  G.  Fox  Co.  v.  Glynn,  191  Mass.  344     189 

Geo.  G.  Fox  Co.  v.  Hathaway,  199  Mass.  99 189 

Georgia  v.  Tennessee  Copper  Co.,  237  U.  S.  474      ....  174,  177 

German  v.  Grim,  32  Ind.  255       95 

German-American  Ins.  Co.  v.  Davis,  131  Mass.  316       ...  95,  97 

Gibbens  v.  Peeler,  8  Pick.  254         Ill 

Gibson  v.  Cooke,  1  Met.  75      79 

Gibson  v.  Supervisors,  80  Cal.  363      40 

Gilchrist  v.  Railroad  Co.,  58  Fed.  708 40 

Gilman  v.  American  Prod.  Con.  Co.,  180  Mass.  319    ....        54 

Gilman  v.  Hunnewell,  122  Mass.  139         186 

Glass  v.  Hulbert,  102  Mass.  24 97,  144,  145 

Globe  Newspaper  Co.  v.  Walker,  210  U.  S.  356       184 

Gloucester  Isinglass,  etc.  Co.  v.  Russia  Cement  Co.,  154  Mass.  92 

120 

Goldman  v.  Rosenberg,  116  N.  Y.  78 84 

Goldsmith  v.  Guild,  10  Allen  239 150 

Gompers  v.  Buck's  Stove  &  Range  Co.,  221  U.  S.  418    ..    .       197 

Goode  v.  Riley,  153  Mass.  585 94 

Goodenough  v.  Labrie,  206  Mass.  599 73 

Goodrich  v.  Burbank,  12  Allen  459 133 

Goodson  v.  Richardson,  L.  R.  9  Ch.  App.  221      169,  172 

Gorton  Pew  Fish  Co.  v.  Tolman,  210  Mass.  402       134 

Gould  v.  Emerson,  160  Mass.  438       91,  92,  96 

Graffam  v.  Burgess,  117  U.  S.  192      100 

Gragg  v.  Martin,  12  Allen  498 104 

Granara  v.  Italian  Cath.  Cem.  Ass'n,  218  Mass.  387  ..    .  163,  164 

Granger  v.  Parker,  137  Mass.  228       70 

Graves  v.  Goldthwaite.  153  Mass.  268       144 

Gray  v.  Bartlett,  20  Pick.  186      70 

Great  Falls  Mfg.  Co.  v.  Worcester  23  N.  H.  462 35 

Green  v.  Smith,  1  Atkyns  572      82 

Greene  v.  Fitchburg,  219  Mass.  121        164 

Greenhood  v.  MacDonald,  183  Mass.  342      27 

Griffen  v.  Kelleher,  132  Mass.  82 207 


XVIII  CASES  CITED 


Griswold  v.  Hazard,  141  U.  S.  260      38,  90 

Grocers'  Supply  Co.  v.  Dupuis,  219  Mass.  576 188 

Grover  v.  Grover,  24  Pick.  261 52,  53 

Guild  v.  Butler,  127  Mass.  386        208 

H 

Hagar  v.  Norton,  188  Mass.  47 110 

Hall  v.  Hardy,  3  P.  Wms.  187 123 

Hallett  v.  Cumston,  110  Mass.  29       204 

Hamilton  v.  St.  Louis  Bank,  3  Dillion  230        121 

Hammond  v.  Allen,  11  Peters  63 91 

Hammond  v.  Putnam,  110  Mass.  232 23,  77,  78 

Handforth  v.  Jackson,  150  Mass.  149 130 

Hano  v.  Bigelow,  155  Mass.  341      138 

Hanson  v.  Griswold,  221  Mass 10 

Harmon  v.  Weston,  215  Mass.  242         212 

Harrell  v.  Sonnabend,  191  Mass.  310         147 

Harrigan  v.  Dodge,  200  Mass.  357;  216  Mass.  461       ...  156,  157 

Harrington  v.  McCarthy,  169  Mass.  492       171 

Harris  v.  Graham,  110  Fed.  Rep.  896 34 

Harrison  v.  Glucose  Sugar  Ref.  Co.,  116  Fed.  Rep.  304      .    .  127 

Harrison  v.  Pepper,  166  Mass.  288         167 

Hart  v.  Leonard,  42  N.  J.  Eq.  416      167,  171 

Hart  v.  Sansom,  110  U.  S.  151 34 

Hart  v.  Weston  R.R.  Co.,  13  Met.  99        210 

Harvey  v.  Squire,  217  Mass.  411 110 

Harvey  v.  Varney,  98  Mass.  118      47,  112 

Haskell  v.  Blair,  3  Cush.  534        56 

Haskell  v.  Cunningham,  221  Mass 49,  65 

Hatton  v.  Gray,  2  Cas.  in  Ch.  164      153 

Haven  v.  Foster,  9  Pick.  112 90,  93 

Haverhill  Sav.  Bank  v.  Griffin,  184  Mass.  419      139 

Hawes  v.  Lothrop,  38  Cal.  493 79 

Hawkes  v.  Kehoe,  193  Mass.  419        84 

Hawkes  v.  Lackey,  207  Mass.  425 102,  103 

Hawley  v.  Clowes,  2  Johns.  Ch.  122       166 

Hayden  v.  Cabot,  17  Mass.  169 206 

Haynes  v.  Nice,  100  Mass.  327 205 

Hayward  v.  Brunswick,  etc.  Society,  3  Q.  B.  D.  403       .    .    .  140 

Hazen  v.  Matthews,  184  Mass.  388        139 

Heard  v.  Stanford,  Cases  temp.  Talbot  173       41 

Hecht  v.  Batchelder,  147  Mass.  335       92 

Heckard  v.  Sayre,  34  111.  142        .    .    .    .  • 150 

Hedges  v.  Dixon  County,  150  U.  S.  182 41 

Heine  v.  Commissioners,  19  Wall.  655 40 

Hendrick  v.  Whittemore,  105  Mass.  23      207 

Hendrickson  v.  Hinckley,  17  Howard  443 160 

Hennessy  v.  Carmony,  50  N.  J.  Eq.  616 178,  181 

Hennessy  v.  Preston,  219  Mass.  61     41 

Henry  v.  A.  B.  Dick  Co.,  224  U.  S.  1 129 


CASES   CITED  XIX 


Herbert  v.  Bronson,  125  Mass.  475 56 

Herbert  v.  Simpson,  220  Mass.  480 52,  53 

Herbst  v.  Fideha,  etc.  Corn's,  218  Mass.  181 119 

Herman  v.  Conn.  Mutual  Life  Ins.  Co.,  218  Mass.  181  .  74,  44,  53, 

55,60 

Hermann  v.  Hodges,  L.  R.  16  Eq.  18 121 

Herring-Hall-Marvin  Safe  Co.  v.  Hall's  Safe  Co.,  208  U.  S.  554       187 

Hewins  v.  Baker,  161  Mass.  320      53 

Hewitt  v.  Hayes,  205  Mass.  356      202,  206 

Hill  v.  Hall,  191  Mass.  253       102,111 

Hill  t/.  Lane,  L.  R.  11  Eq.  215 98 

Hill  v.  Sayles,  12  Cush.  454      175 

Hill  Mfg.  Co.  v.  Prov.  &  N.  Y.  S.  Co.,  113  Mass.  495        .   .       162 

Hinchley  v.  Greaney,  118  Mass.  595 72 

Hinsdale  v.  Bank  of  Orange,  6  Wendell  678      87 

Hittinger  Fruit  Co.  v.  Cambridge,  218  Mass.  220 175 

Hoban  v.  Dempsey,  217  Mass.  166 193,  195,  198,  201 

Hodge  v.  Cole,  140  Mass.  116      94 

Hodge  v.  Sloan,  107  N.  Y.  244        139 

Hodgson  v.  Duce,  2  Jur.  n.  s.  1014      172 

Hogan  v.  Barry,  143  Mass.  538       134 

Holbrook  v.  Bliss,  9  Allen  69        5,  7 

Holbrook  v.  Morrison,  214  Mass.  209 194 

Holbrook  v.  Payne,  151  Mass.  383 59 

Holden  v.  Hoyt,  134  Mass.  181       Ill 

Holland  v.  Cruft,  3  Gray  162       77-79 

Holman  v.  Updike,  208  Mass.  466       74 

Holmes  v.  Darling,  213  Mass.  203 17 

Holmes  v.  Winchester,  133  Mass.  140        ....  13, 14, 15, 106,121 

Holt  v.  Holt,  2  Vernon  322 125 

Hood  v.  North  Eastern  Ry.  Co.,  L.  R.  8  Eq.  666        ....       124 

Hopkins  v.  Smith,  162  Mass.  444 139 

Horton  v.  McCoy,  47  N.  Y.  21 79 

Houghton  v.  Kendall,  7  Allen  72 22 

Hovey  v.  Dary,  154  Mass.  7        77 

Howe  v.  Conley,  16  Gray  552      156 

Howe  v.  Howe,  199  Mass.  598 68 

Howe  v.  Nickerson,  14  Allen  400 123 

Howe  v.  Watson,  179  Mass.  30 119,  153 

Hoxie  v.  Chaney,  143  Mass.  592         131,  132,  187 

Hubbell  v.  Warren,  8  Allen  173       144 

Hughes  v.  Williams,  218  Mass.  448      62,  64 

Huguinon  v.  Basley,  15  Vesey  273 102 

Hunt  v.  Rousmaniere's  Adm'r.,  1  Peters  1        89 

Hunter  v.  Boston,  218  Mass.  535        40 

Hunter  v.  Carroll,  64  N.  H.  572      171 

Huntress  v.  Blodgett,  206  Mass.  318      109 

Huntress  v.  Hanley,  195  Mass.  236 73,  107 

Hutchins  v.  Mead,  220  Mass.  348       108 

Hutchins  v.  Page,  204  Mass.  284 133,  202 

Hutchinson  v.  Nay,  187  Mass.  262     133 


XX  CASES  CITED 


I 

In  re  Barker,  17  Ch.  Div.  241     79 

In  re  David,  (1889)  1  Ch.  Div.  378 132 

In  re  Debs,  158  U.  S.  564 201 

In  re  Leeds  Woolen  Mills,  129  Fed.  Rep.  922 168 

In  re  Shoenberger,  221  Penn.  112       80 

Inst,  for  Sav.  etc.  v.  Puffer,  201  Mass.  41          66,  116 

Ipswich  v.  Prop'rs  Jeffries  Neck,  etc.,  218  Mass.  487      ...  51 

J 

Jackson  v.  Stevenson,  156  Mass.  496      116,  140,  141 

Jacobs  v.  Beecham,  221  U.  S.  263       187,  188 

Jacobs  v.  Hesler,  113  Mass.  157      15 

James  v.  Newton,  142  Mass.  366 58 

Jenkins  v.  Wood,  145  Mass.  494      165 

Jefferys  v.  Jefferys,  Craig  &  Phillips  139 154 

Jeffries  v.  Jeffries,  117  Mass.  184 151 

Jennings  v.  Wall,  217  Mass.  278      67,  70 

Jewell  v.  Lee,  14  Allen  145       142 

John  Bros.  Abergarw  Brewery  Co.  v.  Holmes,  L.  R.  (1900)  1  Ch. 

188      129  137 

Johnson  v.  Bartlett,  17  Pick.  477 .    '  210 

Johnson  v.  Scott,  205  Mass.  294      35,  49,  99 

Johnson  v.  Thompson,  129  Mass.  398        68 

Johnston  v.  Hall,  2  K.  &  J.  414       141 

Jones  v.  Arena  Pub.  Co.,  171  Mass.  22      41 

Jones  v.  Newhall,  115  Mass.  244 25,  28,  118 

Jones  v.  Parker,  163  Mass.  564 125 

Jones  v.  Witter,  13  Mass.  304      54 

Joslyn  v.  Adams,  5  Allen  62 45 

J.  P.  Eustis  Mfg.  Co.  v.  Saco  Brick  Co.,  198  Mass.  212  .  8,  90,  95,  97 

K 

Kansas,  etc.  Co.  v.  Topeka,  etc.,  Co.,  135  Mass.  34        ...       125 

Kaufman  v.  Cook,  114  111.  11 146 

Keefe  v.  Fairfield,  184  Mass.  334        150,  157 

Kelley  v.  Allin,  212  Mass.  327      102 

Kelley  v.  Sullivan,  201  Mass.  34         164 

Kelley  v.  Thompson,  181  Mass.  122       118 

Kelley-Buckley  Co.  v.  Cohen,  195  Mass.  585 61 

Kelly  v.  Central  Pacific  R.  R.  Co.,  74  Cal.  557        155 

Kempson  v.  Kempson,  58  N.  J.  Eq.  94      35,  161 

Kendall  v.  Hardy,  208  Mass.  20      172 

Kennedy  v.  Owen,  136  Mass.  199       135 

Kennedy  v.  Poole,  213  Mass.  495 95,  96 

Kenney  v.  Consumers'  Gas  Co.,  142  Mass.  417 29, 178 

Kerr  v.  Shurtleff,  218  Mass.  167      99 

Kershaw  v.  Merritt,  194  Mass.  113 15-74 

Kershishian  v.  Johnson,  210  Mass.  135      170 


CASES   CITED  XXI 


Killian  v.  Ebbinghans,  110  U.  S.  568      23 

King  v.  Cram,  185  Maas.  103 104 

King  v.  Dickeson,  L.  R.  40  Ch.  Div.  596 142 

King  v.  Wight,  155  Mass.  444          134,  135 

Kingman  v.  Perkins,  105  Mass.  Ill 59 

Kingsbury  v.  Burrill,  151  Mass.  199       57 

Kirsch  v.  Tozier,  143  N.  Y.  390 62 

Kneil  v.  Egleston,  140  Mass.  202        12 

Koehl  v.  Bun-ell,  11  Ch.  Div.  140       173 

Kohn  v.  McNulta,  147  U.  S.  238 33 

Kurinsky  v.  Lynch,  201  Mass.  28       155 

Kyle  v.  Kavanagh,  103  Mass.  356 91 

L 

Labbe  v.  Bernard,  196  Mass.  551 207,  210 

Labouchere  v.  Dawson,  L.  R.  13  Eq.  322      130 

Ladd  v.  Chase,  155  Mass.  417  21 

Lamb  v.  Montague,  112  Mass.  352 210 

Lamb  v.  Pierce.  131  Mass.  72      62 

Lamson  Consol.  etc.  Co.  v.  Prudential  Fire  Ins.  Co.,  171  Mass.  433 

122 

Lane  v.  Concord,  70  N.  H.  485       175 

Lane  v.  Newdigate,  10  Vesey  192 125 

Lawton  v.  Estes,  167  Mass.  181       47 

Leach  v.  Fobes,  11  Gray  506 27 

Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  215 77 

Lee  v.  Kirby,  104  Mass.  420         154 

Leeds,  etc.  Co.  v.  Victor  Talking  Mach.  Co.,  213  U.  S.  301  .       182 

Leonard  v.  Bolton,  153  Mass.  428       105 

Leverett  v.  Barnwell,  214  Mass.  105       58 

Levi  v.  Worcester  Consol.  St.  Ry.,  193  Mass.  116       ...  116,  173 

Levin  v.  Goodwin,  191  Mass.  341        181 

Lexington  Print  Works  v.  Canton,  171  Mass.  414       ...   31,  179 

Lilley  v.  Fifty  Associates,  101  Mass.  432       71,  88 

Lima  v.  Campbell,  219  Mass.  253       66,  110,  113 

Lincoln  v.  Burrage,  177  Mass.  380      135,  140 

Lincoln  v.  Gay,  164  Mass.  537 72,  73 

Lipsky  v.  Heller,  199  Mass.  310      173 

Little  v.  Phoenix  Ins.  Co.,  123  Mass.  380      76 

Livermore  v.  Bou telle,  11  Gray  217 105 

Livingstone  v.  Murphy,  187  Mass.  315       92 

Lloyd  v.  Rippingale,  1  Younge  &  Collyer,  Escheq.  410  .    .    .       150 

Lobdell  v.  Hayes,  4  Allen  187      83 

Locke  v.  Homer,  131  Mass.  93 211 

Lombard  v.  Morse,  155  Mass.  136      14 

Long  v.  AthoL  196  Mass.  497       30,  92,  94 

Longley  v.  Griggs,  10  Pick.  121        208 

Longyear  v.  Hardman,  219  Mass.  405 163 

Lothrop  Pub.  Co.  v.  Lothrop,  etc.  Co.,  191  Mass.  353    ..    .       133 

Loud  v.  Pendergast,  206  Mass.  122 47,  50,  141,  143 

Loughery  v .  Huxford,  206  Mass.  324      194 


XXII  CASES  CITED 


Lovejoy  v.  Bailey,  214  Mass.  134 19,  47,  112 

Lowell  Inst,  for  Sav.  v.  Lowell,  153  Mass.  530 138 

Lowndes  v.  Beetle,  33  L.  J.  Ch.  451        168,  169 

Lowther  v.  Lord  Lowther,  13  Vesey  95      118 

Lucas  v.  Barrett,  1  Greene  (la.)  510       44 

Lufkin  v.  Jakeman,  188  Mass.  528      48,  108 

Lumley  v.  Wagner,  1  De  Gex,  McN.  &  G.  604 126 

Lurie  v.  Pinanski,  215  Mass.  229 17,  49,  113 

Lynch  v .  Union  Inst,  for  Sav.,  158  Mass.  394 170 

M 

McCann  v.  Randall,  147  Mass.  81 .  34,  36 

McCarthy  v.  Wood  Lumber  Co.,  219  Mass.  566      65,  66 

McCurdy  v.  McCurdy,  197  Mass.  248       80 

McCusker  v.  Goode,  185  Mass.  607 139 

McGurk  v.  Cronenwett,  199  Mass.  457      191 

McKay  v.  Coolidge,  218  Mass.  65 204 

MacKeown  v.  Lacey,  200  Mass.  437 12,  13,  60 

McMahon  v.  Brown,  219  Mass.  23      19 

McMurtrie  v.  Guiler,  183  Mass.  451 45 

McNamara  v.  Taft,  196  Mass.  597      175,  178 

McSorley  v.  Larissa,  100  Mass.  270 46 

Mactier  v.  Osborne,  146  Mass.  399 88 

Macy  v.  Nantucket,  121  Mass.  351         22,  23 

Maddison  v.  Alderson,  L.  R.  8  App.  Cases  467         145 

Manchester  Ship  Canal  Co.  v.  Manchester  Co.,  L.  R.  (1901)  2  Ch. 

37  .       123 

Manheim  v.  Woods,  213  Mass.  537 102 

Mann  v.  Willey,  51  N.  Y.  App.  Div.  169 178 

Manning  v.  Mulrey,  192  Mass.  547         43,  50,  51 

Mansfield  v.  Hodgdon,  147  Mass.  304 153 

Mansfield  v.  Sherman,  81  Me.  365      117,  155 

Mansfield  v.  Wiles,  221  Mass.  75         148 

Mara  v.  Pierce,  9  Gray  306      63 

Marble  Co.  v.  Ripley,  10  Wallace  340 124 

Marshall  Engine  Co.  v.  New  Marshall  Engine  Co.,  199  Mass.  546 

203  Mass.  410  .  131,  132,  181,  186 

Marshall  v.  Jaquith,  134  Mass.  138        15 

Martell  p.  White,  185  Mass.  255      194,  197 

Martin  v.  Barnes,  214  Mass.  29 14 

Martin  v.  Drinan,  128  Mass.  515        135 

Marvel  v.  Cobb,  200  Mass.  293       49,  50,  110,  112 

Mason  v.  Mason,  140  Mass.  63        68 

Mass.  Inst,  of  Technology  v.  Boston  Soc.  Nat.  History,  218  Mass. 

189  .  136,  138,  140 

Matthews  v.  Gadd,  5  So.  Australia  129  ,    , 82 

Matthews  v.  Thompson,  186  Mass.  14       107 

Maxham  v.  Day,  16  Gray  213      119 

Mayer  v.  Gowland,  2  Dickens  563       82 

Mayor  v.  Emmons,  L.  R.  (1901)  1  K.  B.  D.  515          ....       125 
Mayor  of  N.  Y.  v.  Brady,  115  N.  Y.  599 161 


CASES  CITED  XXIII 


Meagher  v.  Hoyle,  173  Mass.  577       157 

Medford  &  C.  R.  Co.  v.  Somerville,  111  Mass.  232     ...    .       124 

Mellon  v.  Reed,  123  Penn.  1        77-79-80 

Melrose  v.  Cutter,  159  Mass.  461 175,  177,  178 

Mercantile  Marine  Ins.  Co.  v.  Corcoran,  1  Gray  75    .    .  43,  44,  49 
Merchants'  Legal  Stamp  Co.  v.  Murphy,  220  Mass.  281     .    .       129 

Merriam  v.  Boston,  etc.  Co.,  117  Mass.  241  41 

Merrifield  v.  Lombard,  13  Allen  16 175 

Merrill  v.  Beckwith,  163  Mass.  503;  168  Mass.  72  .  9, 34,  37,  81,116 

Messer  v.  The  Fadettes,  168  Mass.  140         187 

Metcalf  v.  Metcalf,  83  Me.  473       33 

Metcalf  v.  Williams,  104  U.  S.  93        Ill 

Metropolitan  Elec.  Co.  v.  Gooder,  L.  R.  (1901)  2  Ch.  799     .       129 
Middlefield  v.  Church  Mills  Knitting  Co.,  160  Mass.  267       .       140 

Middlesex  Co.  v.  McCue,  149  Mass.  103       175 

Miles  v.  Schmidt,  168  Mass.  339 122,  123 

Milkman  v.  Ordway,  106  Mass.  232       31 

Milldam  Foundry  v.  Hovey,  21  Pick.  417  88 

Miller  v.  Hyde,  161  Mass.  472 155 

Milton  v.  Puffer,  207  Mass.  416       170 

Minasian  v.  Osborne,  210  Mass.  250 196 

Minot,  petitioner,  164  Mass.  38      206 

Mitchell  v.  Dowell,  105  U.  S.  430       31 

Mogul  Steamship  Co.  p.  McGregor,  23  Q.  B.  D.  598      ...       197 

Mollineauxp.  Powell,  3  P.  Wms.  268 166,168 

Moneyweight  Scale  Co.  v.  McBride,  199  Mass.  503;  223  U.  S.  749 

163 

Montacute  v.  Maxwell,  1  P.  Wms.  618      144 

Montague  v.  Flockton,  L.  R.  16  Eq.  189       127 

Moore  v.  Rawson,  199  Mass.  493 133,  202 

Moore  v.  Sanford,  151  Mass.  285        75 

Moors  v.  Ladenburg,  178  Mass.  272       36,  160,  162 

Moran  v.  Dunphy,  177  Mass.  485       194 

Morris  v.  Colman,  18  Vesey  437      127 

Morris  v.  Griffiths,  26  Ch.  D.  601       77 

Morse  v.  Aldrich,  19  Pick.  449 135 

Morse  v.  Stearns,  131  Mass.  389      20 

Moseley  v.  Bolster,  201  Mass.  135      29 

Motherway  v.  Wall,  168  Mass.  333 99 

M.  Steinert  &  Sons  Co.  v.  Tagen,  207  Mass.  394     ....     25,  200 

Muller  v.  Dows,  94  U.  S.  444       36 

Mullet  v.  Halfpenny,  Prec.  in  Ch.  404       147 

Mundy  v.  Jolliffe,  5  Mylne  &  Craig  167        146 

Munroe  v.  Weir,  177  Mass.  301       86 

Munsey  v.  Butterfield,  133  Mass.  492        131 

Murphy  v.  Christian,  etc.  Pub.  Co.,  38  N.  Y.  App.  Div.  426       137 

Murphy  v.  Murphy,  217  Mass.  233        18,  120 

Murphy  v.  Robinson,  214  Mass.  585      ^111 


XXIV  CASES   CITED 


N 

Nash  v.  D'Arcy,  183  Mass.  30 8 

Nash  v.  McCathern,  183  Mass.  345 205 

Nash  v.  Minn.  Title  Ins.  &  Trust  Co.,  163  Mass.  574     ...       109 

Nathan  v.  Nathan,  166  Mass.  294      13,  28 

Naton  v.  McCall,  86  Me.  350       36 

National  Cash  Register  Co.  v.  Navy  Cash  Register  Co.,  99  Fed. 

Rep.  565  .  182 
National  Granite  Bank  v.  Tyndale,  176  Mass.  547      ....         41 

National  Life  Ins.  Co.  v.  Pingrey,  141  Mass.  411 21 

National  Security  Bank  t;.  Batt,  215  Mass.  489       21 

Nazro  v.  Long,  179  Mass.  451  8 

Nelson  v.  Piper,  213  Mass.  531 23,  54,  57 

Nelson  v.  Winchell,  203  Mass.  75    .    .      47,  186,  187,  190,  191,  204 

Neuberger  v.  Klein,  134  N.  Y.  35        105 

Newcomb  v.  Gibson,  127  Mass.  396      207,  208 

Newcomb  v.  Norfolk  St.  Ry.  Co.,  179  Mass.  449 124 

Newell  v.  Hadley,  206  Mass.  335 60,  202,  206,  210 

New  England  Awl  &  Needle  Co.  v.  Marlborough  Awl  &  Needle  Co., 

168,  Mass.  154  .  189 
New  England  Cement  Gun  Co.  v.  McGivern,  218  Mass.  198  193,196 
New  England  Mut.  Life  Ins.  Co.  v.  Phillips,  141  Mass.  535  28,  29 
New  England  Structural  Co.  v.  Everett  Distilling  Co.,  189  Mass. 

145  .  70 
New  England  Trust  Co.  v.  Abbott,  162  Mass.  148     ...    121,  123 

New  Salem  v.  Eagle  Mill  Co.,  138  Mass.  8       179 

Newton  Centre  Trust  Co.  v.  Stuart,  201  Mass.  288     ..    .      71,  73 
New  York  Bank  Note  Co.  v.  Kidder  Press  Mfg.  Co.,  192  Mass.  391 

128 
New  York  Life  Ins.  Co.  v.  Eggleston,  96  U.  S.  572  ..."  76 
New  York,  N.  H.  &  H.  R.  R.  v.  Martin,  158  Mass.  313     .    .  8 

New  York,  N.  H.  &  H.  R.  R.  v.  York  &  Whitney  Co.,  215  Mass. 

36  .  68 

Nickerson  ».  Bridges,  216  Mass.  416       117,  143,  154,156 

Nickerson  v.  Mass.  Title  Ins.  Co.,  178  Mass.  308        ...      72,  74 

Nickerson  v.  Sweet,  135  Mass.  514 88 

Niles  v.  Graham,  181  Mass.  41 88,  110 

Noble  v.  J.  Burnett  Co.,  208  Mass.  75       189,  204 

Nolin  v.  Pearson,  191  Mass.  283         13 

Norcross  v.  James,  140  Mass.  188       134,  135,139 

Nordenfelt  v.  Maxim,  Nordenfelt  Guns  &  Ammunition  Co.,  (1894) 

App.  Cases  535       129 

Norris  v.  Fox,  45  Fed.  Rep.  406      152 

North  Ave.  Sav.  Bank  v.  Hayes,  188  Mass.  135 208 

North  Nat'l  Bank  t>.  Hamlin,  125  Mass.  506        209 

Norton  v.  Piscataqua,  etc.  Ins.  Co.,  Ill  Mass.  532      ....         53 
Nottingham  Patent  Brick  &  Tile  Co.  v.  Butler,  L.  R.  16  Q.  B.  D. 

778      138 

Noyes  v.  Johnson,  139  Mass.  436 151 

Nugent  v.  Cloon,  117  Mass.  219      37 


CASES   CITED  XXV 


o 

O'Brien  v.  Boland,  166  Mass.  481       153,  154 

O'Brien  v.  Goodrich,  177  Mass.  32         172 

O'Brien  v.  McNeil,  199  Mass.  164       203 

Old  Colony  R.  Corp.  v.  Evans,  6  Gray  25 27,  154 

Old  Colony  Trust  Co.  v.  Chauncey,  214  Mass.  271  .  .  148,  152 
Old  Colony  Trust  Co.  v.  Medfield,  etc.  Ry.f  215  Mass.  156  .  41 
Old  Corner  Book  Store  v.  Upham,  194  Mass.  101    .    .  131,  132 

Old  Dominion  Copper  Co.  v.  Bigelow,  188  Mass.  315;   199  Mass. 

488;  203  Mass.  159  65.  103,  111,  162 
Old  Dominion  Copper  Co.  v.  Lewisohn,  136  Fed.  Rep.  915;    148 

Fed.  Rep.  1020;  210  U.  S.  206  .  103 

Oliver  v.  Gale,  182  Mass.  39        164 

Order  of  the  Golden  Cross  v.  Merrick,  163  Mass.  374     ...        21 

O'Shea  v.  Vaughan,  201  Mass.  412     Ill 

Otis  v.  Coffin,  7  Gray  511 96 

Otis  v.  Freeman,  199  Mass.  160 47 

Otis  v.  Prince,  10  Gray  581      101 

P 

Page  v.  Franklin,  214  Mass.  552         30 

Page  v.  Higgins,  150  Mass.  27      95 

Page  v.  Young,  106  Mass.  313 30 

Paine  v.  Meller,  6  Vesey  349 84 

Palmbaum  v.  Magulsky,  217  Mass.  306 109 

Palmer  v.  Clark,  106  Mass.  373       122 

Palmer  v.  Lavers,  218  Mass.  286 126 

Palmer  v.  Stebbins,  3  Pick.  188       130 

Parke  v.  Boston,  175  Mass.  463 91 

Parker  v.  American  Woolen  Co.,  195  Mass.  591  .  .  175,  177,  179 
Parker  v.  American  Woolen  Co.,  215  Mass.  176       .    .    49,  180,  181 

Parker  v.  Garrison,  61  111.  250      120 

Parker  v.  New  England  Trust  Co.,  215  Mass.  226       ....       119 

Parker  v.  Nickerson,  137  Mass.  487 33 

Parker  v.  Nightingale,  6  Allen  341      61 

Parker  v.  Simpson,  180  Mass.  334 4,32,33,102 

Parkin  v.  Thorold,  16  Beavan  59         148 

Parkman  v.  Welch,  19  Pick.  231  105 

Patterson  t>.  Patterson,  197  Mass.  112       14 

Patton  v.  KimbalL  70  111.  72 86 

Pavesich  v.  New  England  Life  Ins.  Co.,  122  Ga.  190      ...       184 

Payson  v.  Lamson.  134  Mass.  593 160,  161 

Peabody  v.  Norfolk,  98  Mass.  452       126,  128,  189 

Pearl  v.  Harris,  121  Mass.  390 122 

Pearmain  v.  Mass.  Hosp.  Life  Ins.  Co.,  206  Mass.  377       .   .      210 

Pearson  v.  Pearson,  27  Ch.  D.  145      130 

Peck  v.  Conway,  119  Mass.  546 138,140 

Peck  v.  Jenness,  7  How.  612        161 

Peek  v.  Peek,  77  Cal.  106 45,  147 


XXVI  CASES  CITED 


Pegge  v.  Skynner,  1  Cox  Eq.  23       38 

Pengall  v.  Ross,  2  Eq.  Abr.  46 145 

Penn  v.  Lord  Baltimore,  1  Vesey  Cases  444       35 

Penniman  v.  Rodman,  13  Met.  382        123 

Pennoyer  v.  Neff,  95  U.  S.  714        37,  65 

Perkins  v.  Coughlin,  148  Mass.  30 78 

Perkins  v.  Perkins,  181  Mass.  401       146 

Perry  v.  Hale,  143  Mass.  540       17 

Peter  v.  Beverly,  10  Peters  532        78 

Peters  v.  Bollestier,  3  Pick.  495       75 

Peters  v.  Equitable  Life  Ass.  Co.,  196  Mass.  143  ...    .      203,  204 

Peters  v.  Stone,  193  Mass.  179         135,  166 

Phelps  v.  Sullivan,  140  Mass.  36      72 

Phila.  Ball  Club  v.  Lajoie,  202  Penn.  210 127 

Phillips  v.  Blatchford,  137  Mass.  510     19 

Phillips  v.  Suffolk  Sav.  Bank,  219  Mass.  597        23 

Pickett  v.  Walsh,  192  Mass.  572         191,  196,  197,  201 

Pierce  v.  Chace.  108  Mass.  254 69 

Pierce  v.  Eq.  Life  Ass.  Co.,  145  Mass.  56      25,  204 

Pierce  v.  O'Brien,  189  Mass.  58       106 

Pierce  v.  Woodward,  6  Pick.  206 130 

Pike  v.  Waltham,  168  Mass.  581      56 

Pingree  v.  Coffin,  12  Gray  288 34,  35,  148 

Plant  v.  Woods,  176  Mass.  492 194,  199 

Piatt  v.  Squire,   12  Met.  494 68 

Piatt,  v.  Woodruff,  61  N.  Y.  378 160 

Plymouth  v.  Wareham,  126  Mass.  475       71 

Poerther  v.  Russell,  33  Wise.  193        166 

Pogrotsky  v.  Levatinsky,  218  Mass.  116 100 

Pollard  v.  Photographic  Co.,  L.  R.  40  Ch.  D.  345       ....       184 

Polsey  v.  Newton,  199  Mass.  450 95 

Pond  v.  Harris,  113  Mass.  114 122 

Porter  v.  Stuart,  203  Mass.  46 Ill 

Porter  v.  Wakefield,  146  Mass.  25 15 

Potter  v.  Howe,  141  Mass.  357 179 

Potter  v.  Jacobs,  111  Mass.  32 146 

Potterton  v.  Condit,  218  Mass.  216        181 

Powell  Duffryn  Coal  Co.  v.  Taff  Vale  Ry.  Co.,  L.R.9  Ch.App.  331, 124 

Powers  v.  Raymond,  137  Mass.  483        32 

Preston  v.  Newton,  213  Mass.  483      27,  163,  171 

Preston  v.  West's  Beach  Corp'n,  195  Mass.  482       172 

Prewitt  v.  Wilson,  103  U.  S.  22       107 

Prince  v.  Crocker,  166  Mass.  347        164 

Proprietors  Charles  River  Bridge  v.  Proprietors  Warren  Bridge, 

7  Pick.  344  .         33 
Prospect  Park,  etc.  Co.  v.  Coney  Island,  etc.  Co.,  144  N.  Y.  152, 124 

Provident  Inst.  v.  White,  115  Mass.  112        22 

Putnam  v.  Grace,  161  Mass.  237 152 

Putnam  v.  Misochi,  189  Mass.  421      207 

Putnam  v.  Story,  132  Mass.  205  44 

Pynchon  v.  Stearns,  11  Met.  304 165  16 


CASES  CITED  XXVII 


Q 

Quinn  v.  Hayden,  219  Mass.  343 203 

R 

Rackemann  v.  Riverbank  Imp.  Co.,  167  Mass.  1 100 

Ray  v.  Powers,  134  Mass.  22       207 

Rayner  v.  Preston,  L.  R.  18  Ch.  Div.  1 81,  84 

Raynes  v.  Stevens,  219  Mass.  556       173 

Reading  Stone  Works  v.  S.  M.  Howes  Co.,  201  Mass.  437    188,  204 

Reardon  v.  Reardon,  219  Mass.  594       114 

Record  v.  Littlefield,  218  Mass.  483        58,  156 

Reed  v.  Boardman.  20  Pic,  441        205 

Reed  v.  Paul.  131  Mass.  129        211 

Reed  v.  Washington  Ins.  Co.,  138  Mass.  572 122 

Reed  v.  Whitney,  7  Gray  533      83 

Rees  v.  Watertown,  19  Wall  121      40 

Reggio  v.  Warren,  207  Mass.  525 90 

Regis  v.  Jaynes,  191  Mass.  245 190,  191 

Renals  v.  Cowlishaw,  9  Ch.  D.  125 136,  138 

Revere  v.  Revere  Water  Co.,  218  Mass.  161 30,  113 

Reynolds  v.  Davis,  198  Mass.  294  ...    .     193,  196,  197,  199,  201 

Rice  v.  Boston  &  Worcester  R.  R.,  12  Allen  141      56 

Rice  v.  D'Arville.  162  Mass.  559 126 

Rice  v.  Hale,  5  Cush.  238     38 

Rice  v.  Merrill,  215  Mass.  419 110 

Rice  v.  Southgate,  16  Gray  142       206 

Rice  v.  Stone,  1  Allen  566 55 

Richard's  Appeals,  57  Penn.  105 178 

Richards  v.  Dower,  64  Cal.  62 169 

Richards  v.  Keyes,  195  Mass.  184       71 

Richards  v.  Todd,  127  Mass.  167        18 

Richardson  Shoe  Mach.  Co.  v.  Essex  Mach.  Co.,  207  Mass.  219  . 

55,  116 

Richardson  v.  White,  167  Mass.  58 57,  58 

Rideout  v.  Knox,  148  Mass.  368         180 

Riverbank  Improvement  Co.  v.  Bancroft,  209  Mass.  217  139 

Riverside  Cotton  Mills  v.  Alabama  &  G.  Mfg.  Co.,  198  U.  S.  188  . 

162 

Roberts  v.  Berry,  3  D.,  Mc,  &  G.,  284      150 

Roberts  v.  Cambridge,  164  Mass.  176        119 

Robertson  v.  Baldwin,  165  U.  S.  275      126 

Robinson  v.  Brown,  182  Mass.  266 177 

Robinson  v.  Wiley,  188  Mass.  533       21,  55 

Robinson  v.  Williams,  8  Met.  454       16 

Rockport  v.  Elwell,  219  Mass.  287      177 

Rogers  v.  Abbot,  206  Mass.  270      55 

Rogers  v.  Boston  Club,  205  Mass.  261       26 

Rogers  v.  Challis,  27  Beavan  175        121 

Rogers  v.  Dutton,  182  Mass.  187        74 


XXVIII  CASES  CITED 


Rogers  v.  Hosegood,  L.  R.  (1900)  2  Ch.  388      138 

Rogers  v.  Shea,  219  Mass.  416 67 

Rohan  v.  Hanson,  11  Cush.  44        205 

Rolikatis  v.  Lovett,  213  Mass.  545      102,  202 

Ropes  v.  Upton,  125  Mass.  258       130 

Rudnick  v.  Murphy,  213  Mass.  470 26 

Runkle  v.  Burrage,  202  Mass.  89         113 

Russell  v.  American  Bell  Tel.  Co.,  180  Mass.  467        ....  74 

Russell  v.  Webster,  213  Mass.  491       23 

Rutherford  v.  Haven,  11  Iowa  587          149 

Ryan  v.  Mutual  Ass'n,  (1893)  1  Ch.  116       124 

Ryder  v.  Wilcox,  103  Mass.  24 17 

S 

Saco  Brick  Co.  v.  J.  P.  Eustis  Mfg.  Co.,  207  Mass.  312     .   .    8,  65 

Sanborn  v.  Rice,  129  Mass.  387       142 

Sanford  v.  Soule  Piano  &  Organ  Inv.  Co.,  164  Mass.  85      .    .         75 

Sarkisian  v.  Teele,  201  Mass.  596 143,  144 

Savage  v.  Mason,  3  Cush.  500      136 

Savannah  Nat'l  Bank  v.  Haskins,  101  Mass.  370 86,  87 

Sawyer  v.  Cook,  188  Mass.  163        50 

Sawyer  v.  Davis,  136  Mass.  239      180 

Sawyer  r.  Hovey.  3  Allen  331      95 

Schmidt  v.  Schmidt,  216  Mass.  572        47,  108 

Schwoerer  v.  Boylston  Market,  99  Mass.  285       136 

Scott  v.  Hanson,  1  Simons  13       155 

Searle  v.  Sawyer,  127  Mass.  491      167 

Seavey  v.  Drake,  62  N.  H.  393 147 

Shapira  v.  D'Arcy,  180  Mass.  377 32 

Shapira  v.  Wildey  Sav.  Bank,  213  Mass.  498 93,  94 

Sharon  v.  Sharon,  67  Cal.  185      11 

Shaw  v.  Loud,  12  Mass.  447 212 

Shelton  v.  Sears,  187  Mass.  455 42 

Shepherd  v.  Shepherd,  196  Mass.  179 14,  104,  105 

Sherry  v.  Perkins,  147  Mass.  212        174,  200 

Short  v.  Caldwell,  155  Mass.  57       37 

Short  v.  Currier,  153  Mass.  182       93,  98 

Sibley  v.  Nason,  196  Mass.  125       55 

Sikes  v.  Work,  6  Gray  433 16 

Silloway  v.  Columbia  Ins.  Co.,  8  Gray  199       105 

Simmons  Med.  Co.  v.  Simmons,  81  Fed.  Rep.  163 128 

Simonds  v  Simonds,  112  Mass.  157 79 

Skinner  v.  Houghton,  92  Md.  68 84 

Skinner  v.  Tirrell,  159  Mass.  474 209,  210 

Skrine  v.  Jackson,  73  Ga.  377      40 

Slater  v.  Gunn,  170  Mass.  509 25,  171,  172 

Slater  v.  Rawson,  6  Met.  439       135 

Sleeper  v.  Nicholson,  201  Mass.  110 151 

Small  v.  Cahoon,  207  Mass.  359      164,  166 


CASES  CITED  XXIX 


Smith  v.  Burgess,  133  Mass.  511     64 

Smith,  etc.  Co.  v.  Canady,  213  Mass.  122 149,  156 

Smith  v.  Everett,  126  Mass.  304      18,  30 

Smith  v.  Green,  197  Mass.  16      152,  153 

Smith  v.  Hatch,  46  N.  H.  146      145 

Smith  v.  Kenney,  213  Mass.  6 101 

Smith  v.  Price,  214  Mass.  298      143 

Smith  v.  Smith,  148  Mass.  1        25 

Smyth  v.  Sprague,  149  Mass.  310       72 

Snell  v.  Atlantic  F.  &  M.  Ins.  Co.,  98  U.  S.  85 94,  97 

Snell  v.  Dwight,  120  Mass.  9        47 

Snow  v.  Alley,  156  Mass.  193 75 

Snow  v.  Blount,  182  Mass.  489 47 

Snow  v.  Boston  Blank  Book  Mfg.  Co,.  153  Mass.  465        .    .  49,  51 

Snow  v.  Hutchins,  160  Mass.  Ill 69,  72 

Snow  v.  Wheeler,  113  Mass.  179         195 

Solomon  v.  Hertz,  40  N.  J.  Eq.  400 128 

Somerly  v.  Buntin,  118  Mass.  279 27 

Somes  v.  Skinner,  3  Pick.  52        68 

Southbridge  Sav.  Bank  v.  Mason,  147  Mass.  500 167 

Spelman  v.  Aldrich,  126  Mass.  113 15 

Spooner  v.  Spooner,  155  Mass.  52       12 

Sprague  v.  Kimball,  213  Mass.  380 45 

Springfield  v.  Conn.  River  R.R.  4  Cush.  63      177 

Spurr  v.  Benedict,  99  Mass.  463      91,  93 

Spurr  v.  Scoville,  3  Cush.  578      34 

Squire  v.  Learned,  196  Mass.  134 56,117 

Standard  Elevator  Co.  v.  Crane  Elevator  Co.,  56  Fed.  Rep.    718  . 

182 
Standard  Paint  Co.  v.  Trinidad  Asphalt  Mfg.  Co.,  220  U.  S,  446  . 

186 

Staples  v.  Mullen,  196  Mass.  132 118,  149 

Starkie  v.  Richmond,  155  Mass.  188 173 

Stearns  v.  Swift,  8  Pick.  532        69 

Stebbins  v.  Palmer,  1  Pick.  71      55 

Stetson  v.  Day,  51  Maine  434      167 

Stetson  v.  Moulton,  140  Mass.  597     .    .    .    • 209 

Stevens  v.  Pierce,  151  Mass.  207 74 

Stevens  v.  Rockport  Granite  Co.,  216  Mass.  486    .  25.  159,  174,  176, 

181 

Stewart  v.  Finkelstone,  206  Mass.  28 47,  137,  141,  143 

Stewart  v.  Joyce,  201  Mass.  301;  205  Mass.  371  .  50,  51,  98,  100,  111 

Stiff  v.  Ashton,  155  Mass.  130     71 

Stimson  v.  Whitney,  130  Mass.  591 70 

Stockbridge  v.  Mixer,  215  Mass.  415      32 

Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  102  Mass.  45  .  33,  42,  90 
Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.,  107  Mass.  315       .         97 

Stockwell  v.  Shalit,  204  Mass.  270      105,  108 

Stone  v.  Hackett,  12  Gray  227        58 

Stone  v.  Reed  152  Mass.  179        21 

Stone  v.  Sargent,  220  Mass.  445      Ill 


XXX  CASES  CITED 


Stowe  v.  U.  S.,  19  Wallace  13      69 

Stratton  Co.  v.  Stratton,  206  Mass.  117         103 

Strickland  v.  Fitzgerald,  7  Cush.  530         119 

Strout  v.  United  Shoe  Mach.  Co.,  215  Mass.  116 41,  50 

Sturtevant  v.  Jaques,  14  Allen  523         151 

Sunter  v.  Sunter,  190  Mass.  449;  198  Mass.  137 51,  204 

Suterv.  Matthews,  115  Mass.  253      28 

Swaine  v.  Great  Northern  Ry.  Co.,  4  De  Gex,  Jones  &  Smith  211  . 

178 
S*athmary  v.  Boston  &  Albany  R.R.  Co.,  214  Mass.  42     .  169,  170 

T 

Taft  v.  Henry,  219  Mass.  78        108 

Tallmadge  v.  East  River  Bank,  26  N.  Y.  105       142 

Tarbell  v.  Bowman,  103  Mass.  341      92,  96 

Taunton  v.  Taylor,  116  Mass.  254      177 

Taylor  V.  Butterick  165  Mass.  547       89 

Taylor  v.  Lynch,  5  Gray  49         56 

Taylor  v.  Page,  6  Allen  86      60 

Thaxter  v.  Sprague,  159  Mass.  397 149 

Thayer  v.  Daniels,  110  Mass.  345;  113  Mass.  129    ..    .  44,  60,  212 

Third  Nat'l  Bank  v.  Skillings,  132  Mass.  410       22 

Thissell  v.  Schillinger,  186  Mass.  180         77 

Thomas  v.  Howell,  34  Ch.  Div.  166 81 

Thompson  v.  Barry,  184  Mass.  429         99,  100 

Thompson  v.  Gould,  20  Pick.  134       84 

Thompson  v.  Heywood,  129  Mass.  401       167 

Thorpe  v.  Brumfitt,  L.  R.  8  Ch.  App.  650 174 

Thurston  v.  Hamblin,  199  Mass.  151  204 

Tilley  v.  Thomas,  L.  R.  3  Ch.  App.  61       150 

Tillotson  v.  Rose,  11  Met.  299 206 

Title  Guarantee  and  Trust  Co.  v.  Haven,  196  N.  Y.  487  210 

Tobin  v.  Larkin,  183  Mass.  389       148,  149,  156 

Toledo,  etc.  Railroad  Co.  v.  Penn.  Co.,  54  Fed.  746    ...    .         40 

Tomlinson  v.  Bury,  145  Mass.  346      207,  208 

Tompkins  v.  Halleck,  133  Mass.  32        184 

Topliff  v.  Jackson,  12  Gray  565       18 

Tower  v.  Appleton  Bank,  3  Allen  387         87 

Townley  v.  Bidwell,  14  Vesey  591       82 

Townsley  v.  Chaplin,  12  Allen  476      40 

Tracy  v.  Lincoln,  145  Mass.  357  72 

Traiser  v.  Doty  Cigar  Co.,  198  Mass.  327      186 

Trask  v.  Sturges,  170  N.  Y.  482      79 

Traveler  Shoe  Co.  v.  Koch,  216  Mass.  412 146,  147 

Trecy  v.  Jefts,  149  Mass.  211 110 

Trego  v.  Hunt,  (1896)  App.  C.  7 130,  132 

Tucker  v.  Howard,  128  Mass.  361       169,  170,  172 

Taft  v.  Henry,  219  Mass.  78 108 

Tufts  v.  Charlestown,  2  Gray  271       134 

Tulk  v.  Moxhay,  11  Beavan  571      61,  136 


CASES  CITED  XXXI 


Turner  v.  Revere  Water  Co.,  171  Mass.  329 125 

Turnquist  v.  Harmon,  219  Mass.  560 75 

Tuttle  v.  Batchelder  &  Lincoln  Co.,  170  Mass.  315     ....  109 

Tuttle  v.  Standish,  4  Allen  481 87 

Tyler  v.  Court  of  Registration,  175  Mass.  71 34,  37 

Tyler  v.  Odd  Fellows,  etc.,  145  Mass.  134 71 

U 

Ungley  v.  Ungley,  L.  R.  5  Ch.  D.  887 147 

Union  Bank  v.  Pool,  143  Mass.  203 21 

Union  Trust  Co.  v.  Olmstead,  102  N.  Y.  729 36 

United  Shoe  Mach'y  Co.  v.  Kimball,  193  Mass.  351       .      126,  130 
United  Shoe  Mach'y  Co.  v.  La  Chapelle,  212  Mass.  467        .       129 

United  States  v.  Insley,  130  U.  S.  263 51 

United  States  v.  Parkhurst-Davis  Mercantile  Co.,  176  U.  S.  317 

162 
United  Zinc  Cos.  v.  Harwood,  216  Mass.  474  ...  56,  103,  112 
Utermehle  v.  Norment,  197  U.  S.  40      89 

V 

Vann  v.  Burr,  151  Mass.  386       66 

Van  Ness  v.  Boiney,  214  Mass.  340        69 

Varney  v.  Baker,  194  Mass.  239      163 

Vass  v.  Wales,  129  Mass.  38 122 

Vaughan  v.  Bridgham,  193  Mass.  392        174 

Vegelahn  v.  Guntner,  167  Mass.  92        .   .     191,  195,  199,  200,  201 

Vernon  v.  Stephens,  2  P.  Wms.  66      150 

Von  Arnim  v.  American  Tube  Works,  188  Mass.  515  .   .  50,  163, 

164,203 
Vonderbank  v.  Schmidt,  44  La.  Ann.  264      130 

W 

Wadsworth  v.  Williams,  100  Mass.  126      106 

Wakeham  v.  Barker,  82  Cal.  46       126 

Walker  v.  Brooks,  125  Mass.  241        54 

Walker  v.  Cronin,  107  Mass.  555        193,  194,  195,  19 

Walsh  v.  Walsh,  116  Mass.  377       37 

Walworth  v.  Cassassa,  219  Mass.  20 163 

Warner  v.  Morrison,  3  Allen  566 212 

Warren  v.  Pazolt,  203  Mass.  328 101 

Warren  v.  Warren  Thread  Co.,  134  Mass.  247 185,  187 

Washburn  v.  Miller,  117  Mass.  376        171 

Washburn  v.  White,  197  Mass.  540        45 

Wasserman  v.  McDonnell,  190  Mass.  326         58 

Watson  v.  Sutherland,  5  Wallace  74       173 

Watson  v.  Watson,  128  Mass.  152      68 

Webber  v.  Landrigan,  215  Mass.  221          137 

Webber  Lumber  Co.  v.  Shaw,  189  Mass.  366 211 


XXXII  CASES  CITED 


Webster  v.  Webster,  180  Mass.  310 133 

Weeks  v.  Parsons,  176  Mass.  570 207 

Weener  v.  Brayton,  152  Mass.  101      185,  186 

Welch  v.  Boston,  208  Mass.  326      22 

Weller  v.  Smeaton,  1  Brown  Ch.  572      175 

Wells  v.  Calnan,  107  Mass.  514       84 

Wentworth  v.  Manhattan,  216  Mass.  374         117 

Wenz  v.  Pastene,  209  Mass.  359      43,  45,  64 

West  v.  Camden,  135  U.  S.  507       101 

Westall  v.  Wood,  212  Mass.  540      45,  121 

West  Ham  Board  v.  E.  London  Co.,  (1900)  1  Ch.  624    .    .    .       167 

Westlake  v.  Dunn,  184  Mass.  260       71,  99 

West  Publishing  Co.  v.  Lawyers'  Co-op.  Pub.  Co.,  53  Fed.  Rep.  265 

183 

W.  Galligan  Co.  ».  Casey,  205  Mass.  26        61 

Wheeler  v.  Sage,  1  Wallace  518       47 

Wheelock  v.  Noonan,  108  N.  Y.  179 169 

Whitcomb  v.  Converse,  119  Mass.  38 .         19 

White  v.  Coleman,  127  Mass.  34 59 

White  v.  Kenney,  157  Mass.  12       180 

White  v.  Middlesex  R.  R,  135  Mass.  216         122 

White  v.  Patten,  24  Pick.  324      69 

White  v.  White,  169  Mass.  52      18 

Whitfield  v.  Benit,  2  P.  Wms.  240       166 

Whiting  v.  Burkhardt,  178  Mass.  535        29 

Whitman  v.  Mclntyre,  199  Mass.  436 203 

Whitman  v.  Porter,  107  Mass.  522         19,  207 

Whitney  v.  Metallic  Wire  Screen  Mfg.  Co.,  187  Mass.  557    .         45 

Whitney  v.  Stearns,  11  Met.  319 38 

Whitney  v.  Union  Ry.  Co.,  11  Gray  359        136 

Whitney  v.  Wheeler,  116  Mass.  490 15 

Whittenton  Mfg.  Co.  v.  Staples,  164  Mass.  319       140 

Whitwood  Chemical  Co.  v.  Hardman,  L.  R.  (1891)  2  Ch.  416      127 

Wiggins  v.  Brand,  202  Mass.  141        18 

Wilkinson  v.  Stitt,  175  Mass.  581        31 

Willcutt  &  Sons  Co.  v.  Driscoll,  200  Mass.  110        .      191,  195,  199 

Williams  v.  Carty,  205  Mass.  398        42,  97,  145,  146 

Williams  v.  Farrand,  88  Mich.  473         130 

Williams  v.  Hershaw,  11  Pick.  79    .    . 16 

Wills  v.  Stradling,  3  Vesey,  378       146 

Wilson  v.  Bryant,  134  Mass.  291 13 

Wilson  v.  Jackson,  204  Mass.  432       47,112 

Wilson  v.  Martin-Wilson,  etc.  Co.,  149  Mass.  24;   151  Mass.  515   . 

26,34 

Wing  v.  Deans,  214  Mass.  546 69 

Winslow  v.  Nayson,  113  Mass.  411 30 

Winston  v.  Westfeldt,  22  Ala.  760 162 

Witters  v.  Globe  Sav.  Bank,  171  Mass.  425      35 

Wolfboro  Loan  &  Banking  Co.  v.  Rollins,  195  Mass.  323  .  53 
Wolmershausen  v.  Gullick,  L.  R.  (1893)  2  Ch.  514  ....  207 
Wood  v.  Boynton,  64  Wise.  265      92 


CASES  CITED  XXXIII 


Wood  v.  Humphrey,  114  Mass.  185 122 

Woodard  v.  Woodard,  216  Mass.  1 44 

Woodward  v.  Spurr,  141  Mass.  283 12 

Woodward  r.  Worcester,  121  Mass.  245     .    .   " 176 

Wooldridge  ».  Norris,  L.  R.  6  Eq.  410       206 

Worthington  v.  Waring,  157  Mass.  421       159,  193,  198 

Y  / 

York  t>.  Flaherty,  210  Mass.  35       104 

Young  v.  Haviland  215  Mass.  120 164 


CITATIONS 

AMES= Ames's  Cases  on  Equity,  Parts  I- VI. 
POMEROY=Pomeroy's  Equity  Jurisprudence. 
Massachusetts  cases  are  cited   through  .Volume  220. 


NOTE— The  explanatory  note  after  a  given  case  cited,  is 
not  intended  to  be  a  summary  of  the  case,  or  necessarily  to 
state  the  facts  found  therein.  It  is  intended  that  such  a  note 
shall  call  attention  to  something  referred  to  in  the  case, 
either  directly  or  indirectly,  that  makes  the  case  in  point  as 
a  citation. 


CHAPTER  I. 
ORIGIN  AND  NATURE  OF  EQUITY 

A.  Historical. 

B.  Effect  of  Equity  Growth  on  Common  Law. 

C.  An  Outline  of  Equity. 

A.    Historical 

In  the  reign  of  William  the  Conqueror  (1066-1087) 
the  principal  law  courts  in  England1  were : 

1.  The  King's  Court  (Curia  Regis) 

2.  Those  of  itinerant  justices  appointed  by  the 
crown  to  hear  pleas  in  shire  towns. 

3.  The  local  folk  and  manor  courts. 

The  last  two  of  these  were  by  the  time  of  Edward 
II  (1307-1326)  largely  superseded  by  the  courts  of 
"justices  in  eyre"  (ar)  appointed  from  the  three  more 
important  English  superior  courts,  to  wit : 

1.  The  King's  Court  (which  after  Henry  II's 
time  (1159-1184)  had  only  judicial  functions.) 

2.  The  Court  of  Common  Bench  (or  Common 
Pleas)  at  Westminister.  Magna  Charta  had 
provided  that  "common  pleas  shall  no  longer 
follow  the  King,"  and,  thereafter,  contro- 
versies about  land  and  other  matters  purely 
civil  were  heard  at  Westminister,  for  the 
transitory  nature  of  the  King's  Court  had 
proven  a  hardship. 


1  See  Pomeroy,  Sections  I  and  II. 


EQUITY  AND  ITS  REMEDIES 


3.    The    Court    of    Exchequer  —  originally    con- 
cerned only  with  revenue  matters. 

In  addition  to  the  Common  Law  courts  there  was 
the  great  equity  tribunal,  the  Chancery  Court,  headed 
by  the  Chancellor.  There  had  been  a  Chancellor 
before  and  after  the  Conqueror,  but  originally  he  had 
little  judicial  power;  he  was  merely  the  King's  chief 
adviser. 

The  foregoing  superior  courts  remained  in  some  form 
until  the  Judicature  Act  of  1873  (effective  November 
1,  1875)  when  they  and  the  Court  of  Chancery  were 
all  consolidated  into  the  "Supreme  Court  of  Judica- 
ture." 

The  organization  provided  for  this  court  was: 

Supreme  Court  of  Judicature 


Her  Majesty's  High  Her  Majesty's 

Court  of  Justice  Court  of  Appeal2 

_j 

I  I        I        I  I 

Probate, 
Queen's    Com.  Divorce 

Chancery    Bench     Pleas  Exchequer  and 

Div.  Div.        Div.  Div.        Admiralty 

I  I  I  Div. 

Consolidated  in  1880  into 
Queen's  Bench  Division.3 


2  From  the  Court  of  Appeal,  an  appeal  lies  in  some  matters  to 
the  House  of  Lords. 

3  For  the  present  organization  of  the  English  courts,  see  "A 
History  of  English  Legal  Institutions"  by  A.  T.  Carter.  Butter- 
worth  &  Company,  London,  publishers. 


ORIGIN  AND  NATURE  OF  EQUITY 


The  present  Chancery  Division  deals  primarily 
with  cases  involving  equitable  subject  matter,  although 
law  and  equity  are  administered  concurrently  in  every 
court.  Thus,  injunctions  and  the  remedy  of  specific 
performance  are  now  granted  in  any  of  the  divisions 
of  the  King's  (formerly  Queen's)  Bench. 

The  great  reason  for  the  growth  of  the  equity  sys- 
tem was  the  inelasticity  of  common  law  procedure, 
and  the  inadequacy  of  common  law  remedies. 

The  actions  at  early  common  law,  (that  is,  prior  to 
1285)  were: 

1.    Real  Actions  (very  restricted) 

/Debt 


2.    Personal  Actions  { 


Ex  contractu  \  Covenant 


Ex  delicto       f  Trespass 
\  Detinue 
3.    Replevin  (very  restricted) 

Precedents  for  all  writs  were  originally  kept  in  the 
"Registra  Brevium,"  an  office  connected  with  the 
Chancery.  An  applicant  for  a  writ  applied  to  the 
Chancellor's  Clerk,  who  searched  the  precedents,  and 
if  he  found  none,  no  action  could  be  begun. 

By  13  Edward  I  (1285)  "a  case  falling  under  like 
law  (i.  e.,  like  the  foregoing  in  which  writs  might  be 
issued)  and  requiring  like  remedy"  might  have  a  writ 
from  Chancery.  This  statute4  (13  Edward  I,  chap. 
1,  sec.  24)  resulted  in  the  actions  of  Trespass  on  the 
Case,  Trover  and  Assumpsit,  the  most  flexible  of 
modern  common  law  actions. 

Even  then  the  remedies  of  the  Common  Law  were 
very  limited.  One  desiring  a  remedy  not  in  the  fore- 
going groups  was  obliged  to  appeal  directly  to  the 
Crown.  At  first  such  petitions  were  heard  by  the 
King  and  the  Select  Council,  but  by  reign  of  Edward  I 


4  Sometimes  called  the  Statute  of  Westminister.  Had  this 
statute  been  more  liberally  construed  there  would  perhaps  have 
been  less  demand  for  equity  jurisdiction,  as  we  have  it  today. 
See  Kerr  on  Equity  Jurisprudence  11  and  12. 


EQUITY  AND  ITS  REMEDIES 


(1272-1307)  it  had  become  a  custom  to  refer  such 
matters  to  the  Chancellor,  a  member  of  the  Council 
who  from  early  times  had  certain  judicial  powers. 

Such  was  the  origin  of  the  Court  of  Chancery  (and 
the  law  of  equity.)  Equity  jurisdiction  by  the  Chan- 
cellor was  permanently  and  definitely  established  by 
Edward  III  in  the  twenty-second  year  of  his  reign 
(1348)  in  a  decree  authorizing  jurisdiction  in  all  cases 
requiring  the  exercise  of  the  King's  prerogative  of 
grace.  The  Chancellor's  authority  was  therefore 
general  and  not  dependent  on  a  writ,  as  at  common 
law.  This  distinction  never  existed  in  America, 
where  both  courts  derive  jurisdiction  from  constitu- 
tions or  statutes. 

Present  Procedure. 

Reformed  Procedure.  To-day  England  and  most 
American  states  (beginning  with  New  York  in  1848) 
make  practically  no  distinction  between  procedure 
in  legal  and  equitable  causes  or  between  tribunals 
administering  law  and  equity.5 

In  another  class  of  states,  and  the  Federal  Courts, 
there  is  still  maintained  different  procedure,  but  the 
administration  of  both  systems  is  in  the  same  judges, 
who  in  one  term  hear  law  cases  and  in  another  equity, 
as  in  New  England  States  and  in  many  Southern 
States.  <- 

In  a  third  class  of  states,  there  are  provided  separate 
judges  for  law  and  equity  (in  the  latter  case  "Chan- 
cellors"), as  in  Alabama,  Delaware,  New  Jersey, 
Tennessee  and  Mississippi. 

Massachusetts  Equity  Jurisdiction  —  History 
Stated  in  Parker  v.  Simpson,  180  Mass.  334. 
See  also  Pomeroy,  sections  311-321. 


5  See  reference  to  English  Courts,  ante  page  3. 


ORIGIN  AND  NATURE  OF  EQUITY 


At  the  time  of  the  adoption  of  the  Massachusetts 
Constitution  (1780),  Massachusetts  courts  had  no 
equity  powers,  except  to  grant  relief  in  case  of  mort- 
gages and  to  chancer  bonds. 

Holbrook  v.  Bliss,  9  Allen  69. 

Massachusetts  equity  jurisdiction  came  largely 
through  these  Statutes:6 

In  the  Supreme  Court: 

St.  1817,  ch.  87,  over  trusts  under  deeds  and 

wills  and  to  enforce  specific 
performance. 

St.  1823,  ch.  140,  over  disputes  between  partners 

joint  tenants  and  tenants  in 
common. 

St.  1827,  ch.  88,  to  give  relief  against  waste  and 

nuisance. 

Rev.  Sts.  (1836)  ch.      over  all  trusts. 
81,  sec.  8, 

Rev.  St.  (1836,)  ch.      over     accounting     (abolishing 
118,  sec.  43,  common  law  accounting.) 

St.  1855,  ch.  194,  over  cases  of  fraud. 

St.  1856,  ch.  38,  over    cases    of    mistake    and 

accident. 

St.  1857,  ch.  214,  full  equity  jurisdiction,  where 

no  plain,  adequate  and  com- 
plete remedy  at  law. 

St.  1877,  ch.  178,  (now  Revised  Laws,  ch.   159, 

sec.  1)  full  jurisdiction  over 
cases  "cognizable  under  general 
principles  of  equity  jurispru- 
dence." 


6  This  table  is  given  here  because  it  is  believed  it  may  be  useful 
for  reference,  so  that  one  may  know  whether  any  case  he  reads  in 
the  Massachusetts  reports  is  a  precedent  today  or  whether  its 
effect  is  lost  by  the  limited  jurisdiction  of  equity  at  the  time  the 
decision  was  made.  In  considering  the  value  of  cases  in  Massa- 
chusetts as  precedents,  it  should  be  remembered  that  the  fore- 
going statutes  were  strictly  construed  and  that  before  St.  1877, 
ch.  178,  the  jurisdiction  was  limited  to  cases  where  there  was  no 
adequate  remedy  at  law. 


EQUITY  AND  ITS  REMEDIES 


In  the  Superior  Court: 

St.  1883,  ch.  223,  gave  full  equity  jurisdiction  con- 
current with  Supreme  Court  (except  in  certain  statu- 
tory equitable  remedies  going  beyond  general  equity 
i'urisdiction.  See  Revised  Laws,  ch.  159,  sec.  2,  and 
Baldwin  v.  Wilbraham,  140  Mass.  459.) 

In  the  Probate  Court: 

Revised  Laws,  ch.  162,  sec.  5,  in  administration  of 
estates  and  trusts. 

Revised  Laws,  ch.  148,  seel,  in  specific  performance. 

St.  1915,  ch.  151,  for  the  recovery  of  legacies. 

To-day  the  Massachusetts  courts  have  the  broadest 
equity  powers. 

B.     Effect  of  Equity  Growth  on  Common  Law. 

As  a  branch  of  the  law,  equity  to-day  is  a  system  of 
fixed  principles.  The  extent  of  equity  jurisdiction 
to-day  is  not  determined  by  the  injustice  of  legal 
rules  or  the  inadequacy  of  legal  remedies,  but  by 
whether  or  not  the  facts  of  any  case  are  included  under 
any  of  the  settled  principles  constituting  the  present 
system  of  equity  jurisprudence.7 

The  principles  upon  which  equity  jurisprudence  is 
based,  however,  are  equitable.  The  effect  of  their 
growth  is  seen  in  common  law  development  in  Massa- 
chusetts, for  example,  in 


7  It  is  important  to  remember  that  t  hese  principles  are  as  fixed 
as  those  of  common  law.  Laymen  generally,  and  courts  and 
lawyers  frequently,  use  the  word  "equitable"  in  a  broad  sense  re- 
ferring to  the  nature  of  conduct.  But  as  a  system  of  jurispru- 
dence "equity"  is  not  synonymous  with  "aequitas."  Man-made 
law,  intended  to  be  of  general  application,  must  frequently  fail  to 
afford  relief  against  particular  unusual  cases  that  involve  hardship. 
A  man  may  make  an  "inequitable"  distribution  of  his  property  by 
will;  but  he  has  a  right  to,  and  equity  does  not  concern  itself  with 
his  act.  It  must  not  be  inferred,  however,  that  equity  jurisdic- 
tion has  ceased  to  develop.  There  are  various  equitable  doc- 
trines still  in  a  constructive  stage,  as,  for  example,  the  doctrine  of 
unfair  competition. 


ORIGIN  AND  NATURE  OF  EQUITY 


I.    Legal  Rules 

(a)   Permitting  suits  on  lost  instruments. 
Fales  v.  Russell,  16  Pick.  315. 

(6)   Relieving  against  forfeitures  and  penalties 
in  bonds. 
Holbrook  v.  Bliss,  9  Allen  69. 

(c)  Changing  the  effect  of  a  seal.  (Formerly 
payment  of  a  sealed  instrument  couldfnot 
be  pleaded  unless  instrument  had  been 
returned  or  a  release  under  seal  given) 
Pomeroy  sec.  70. 

(d)  Allowing  payment,  without  forfeiture,  of 
overdue  mortgages. 

Holbrook  v.  Bliss,  supra. 

II.    Statutes6  concerning 

(a)   Trusts; 

See  Mass.  Rev.  Laws,  ch.  147. 

(6)    Recording  and  priorities; 

See  Mass.  Rev.  Laws,  ch.  127,  sec.  1-6. 

(c)  Administration  of  estates  and  guardian- 
ships; 

See  Mass.  Rev.  Laws,  ch.  137-145. 
Mass.  St.  1913,  ch.  307. 

(d)  Married  Women's  property; 
See  Mass.  Rev.  Laws,  ch.  153. 

(c)   Admission  of  Equitable  Defenses; 

See  Mass.  Rev.  Laws,  ch.  173,  sec.  28  and 
32. 

(/)    And  many  others. 


8  In  England,  the  Judicature  Act  provides  that  wherever  there 
in  any  conflict  or  variance  between  the  rules  of  equity  and  those 
of  the  common  law  with  reference  to  the  same  matter,  the  rules 
of  equity  shall  prevail. 


EQUITY  AND  ITS  REMEDIES 


III.     Equitable  Defenses. 

Formerly,  when  the  plaintiff  was  entitled  to  recover 
in  an  action  at  law  and  the  defendant  had  some 
equitable  right  in  the  subject  matter,  the  defendant 
was  obliged  to  have  the  plaintiff  enjoined  in  equity 
from  prosecuting  his  suit  at  law.  It  is  now  provided 
by  statute  in  many  jurisdictions  that  the  defendant 
may  allege  as  a  defense  to  an  action  at  law  any  facts 
which  would  entitle  him  in  equity  to  be  absolutely 
and  unconditionally  relieved  against  the  plaintiff's 
claim  or  cause  of  action  or  against  a  judgment  recov- 
ered by  the  plaintiff  in  such  action. 

Mass.  Rev.  Laws,  ch.  173,  sec.  28. 

Nazro  v.  Long,  179  Mass.  451  (writ  of  entry; 

tenant  set  up  that  he  was  an  equitable 

assignee  of  an  agreement  to  purchase  the 

property). 
Ferguson  v.  Jackson,  180  Mass.  557  (former 

statute  was  not  applicable  to  district  or 

police  courts)9. 

Such  a  defense  may  not  be  made  if  the  defendant's 
claim  has  already  been  adjudicated  adversely  in  equity. 

Saco  Brick  Co.  v.  J.  P.  Eustis  Mfg.  Co.,  207 
Mass.  312. 

A  party  having  an  equitable  defense  may  still  resort 
to  an  injunction  restraining  the  other  party  from  suing 
at  law,  but  one  who  sets  up  an  equitable  defense  and 
fails  may  not  then  seek  an  injunction  against  a  suit  at 
law. 

N.  Y.,  N.  H.  &  H.  R.  R.  v.  Martin,  158  Mass. 

313. 
Nash  v.  D'Arcy,  183  Mass.  30 
Gargano  v.  Pope,  184  Mass.  571. 
J.  P.  Eustis  Mfg.  Co.  v.  Saco  Brick  Co.,  198 
Mass.  212. 


9  But  see  Mass.  St.  1913,  ch.  307,  extending  this  right. 


ORIGIN  AND  NATURE  OF  EQUITY  9 

The  statute  further  provides  that  the  plaintiff,  in 
reply  to  a  defense  alleged  by  the  defendant,  may  set 
up  any  facts  which  would  "entitle  the  plaintiff  to  be 
absolutely  and  unconditionally  relieved  in  equity 
against  such  defence."10 

Revised  Laws,  ch.  173,  sec.  32. 

In  Massachusetts,  an  action  may,  in  the  discretion 
of  the  court,  be  changed,  by  amendment,  from  law  to 
equity  and  vice  versa,  at  any  time  before  final  decree. 

Revised  Laws,  ch.  159,  sec.  6;  ch.  173,  sec. 
52,  as  amended  by  Mass.  St.  1911,  Chap. 
275. 

Merrill  v.  Beckwith,  168  Mass.  72. 

(Bill  had  been  ordered  dismissed,  but  no 
decree.) 

C.    An  Outline  of  Equity 

A  practical,  though  not  wholly  accurate  test  of  what 
is  comprised  in  Equity  Jurisprudence  is  found  in  these 
three  general  divisions  (suggested  in  Merwin's  Equity, 
Chapter  II) : 

I.     Equitable  Subject  Matter; 

II.     Equitable  Remedies; 

III.     Equitable  Parties. 

Equitable  Subject  Matter 

At  common  law,  in  a  suit  concerning  property,  the 
plaintiff,  in  order  to  recover,  must  show  that  he  has 
some  legal  title11  to  the  land,  contract,  note  or  chattel 
in  question. 

But  there  may  be  in  property  an  interest  in  another 


10  So,  if  a  defendant  railroad  plead  release  under  seal  of  all 
claims,  in  defence  of  suit  for  negligence,  plaintiff  might  then  reply, 
alleging  that  release  was  obtained  by  fraud. 

11  "Legal  title"  simply  means  such  a  title  as  the  common  law 
courts  recognized. 


10  EQUITY  AND  ITS  REMEDIES 


than  the  holder  of  the  legal  title  (e.  g.  the  title  of  a 
beneficiary  under  a  trust  in  a  will)  which  interest, 
although  it  has  no  recognition  at  common  law,  may 
be  very  real.  This  interest  is  the  equitable  right  or 
title,  originally  recognized  exclusively  in  courts  of 
equity  jurisdiction. 

Further  consideration  of  this  subject  belongs  for  the 
most  part  under  "Trusts,"  and  is  therefore  not  given 
in  this  volume. 

Equitable  Remedies. 

The  remedies  of  the  common  law  courts  (except  in 
the  case  of  such  special  remedies  as  mandamus,  quo 
warranto,  etc.)  are  confined  to  awarding  pecuniary 
damages,  and  to  the  recovery  of  specific  real  estate 
(by  a  real  action)  or  of  personal  property  (by  re- 
plevin.12) 

There  is  no  way,  for  instance,  by  a  suit  at  common 
law,  to  prevent  injury  to  property,  to  compel  perfor- 
mance of  a  contract  duty  or  to  rectify  a  written  instru- 
ment which  clearly  does  not  express  the  intent  of  the 
parties  to  it. 

The  wide  scope  of  the  remedies  afforded  by  the 
equity  courts  is  seen  in  this  classification  (see  Pomeroy, 
sec.  112) :« 

(a)  Declarative  remedies,  (declaring  or  confirm- 
ing some  right,  title  or  property  of  plain- 
tiff1*); 

(b)  Restorative  remedies,  (restoring  enjoyment 
of  some  right,  title  or  property,  as  by  man- 
datory injunction) ; 

(c)  Preventive  remedies,  (enjoining  threatened 
injuries); 


12  And  at  common  law,  and  in  some  jurisdictions  today,  by 
detinue. 

18  For  a  shorter  classification  see  Merwin,  sec.  36-42. 

14  But  the  right  declared  must  be  one  to  be  affected  by  the  parti- 
cular relief  sought  in  the  bill.     Hanson  v.  Griswold,  221  Mass. 


ORIGIN  AND  NATURE  OF  EQUITY  11 

(d)  Remedies  of  Specific  Performance,  (com- 
pelling one  to  do  an  act  which  he  has  con- 
tracted to  do) ; 

(e)  Remedies  of  Reformation,  Correction  or 
Re-execution  (of  instruments) ; 

(/)  Remedies  of  Recission  (of  transactions)  or 
Cancellation  (of  instruments) ; 

(g)    Remedies  of  Pecuniary  Compensation, 

(1)  By  recovery  of  judgment; 

(2)  By  ordering  payment  of  money  from 

particular  fund  (as  in  foreclosure 
of  mortgages) ; 

(3)  By  distributing  money  among  claim- 

ants  (as  in  receivership   of  part- 
nership) ; 

(h)    Remedy  of  Accounting; 

(i)  Remedies  of  Conferring  or  Removing  Official 
Functions,  (as  of  trustees) ; 

(J)  Remedies  of  Establishing  or  Destroying 
Personal  Status,  (as  by  divorce.  Remedies 
largely  statutory.  See  Sharon  v.  Sharon, 
67  Cal.  185.) 

The  foregoing  remedies  are  frequently  concurrent.1* 
Cases  are  brought  in  equity,  and  not  at  common 
law,  when  one  seeks  these  particular  remedies  which 
only  the  equity  court  can  confer;  and  this  is  true 
whether  the  primary  right  to  be  enforced  is  equitable 
or  legal.18 


u  The  several  more  important  remedies  are  separately  con- 
sidered in  subsequent  chapters. 

16  For  example,  trespass  upon  a  legal  estate  in  land  may  be  the 
basis  of  a  suit  at  law  for  damages.  But  if  one  seeks  the  equitable 
remedy  of  injunction  to  protect  from  threatened  continued  trespass 
on  that  legal  estate,  he  must  seek  it  solely  in  a  court  of  equity. 


12  EQUITY  AND   ITS  REMEDIES 


CHAPTER   II. 
EQUITABLE   PARTIES. 

A.  Suits  Between  Husband  and  Wife. 

B.  Suits  Between  Partners. 

C.  Certain  Suits  Between  Parties  Having  or 

Claiming  Interests  in  a  Common  Subject 
Matter. 

Suits  between  certain  parties  are  not  entertained  at 
Common  Law,  but  exclusively  in  Equity.  There  are 
three  principal  classes  of  equitable  parties. 

A.    Suits  between  husband  and  wife. 

At  common  law,  husband  and  wife  might  not  sue 
each  other,  nor  might  a  married  woman  hold  the  legal 
title  to  property  or  sue  anyone.  In  some  states 
husband  and  wife  may  to-day  sue  each  other  at  law, 
under  statutes.  In  Massachusetts,  such  suits  are 
still  forbidden  at  law,  and,  except  as  hereinafter  set 
forth,  may  not  be  brought  in  equity;  though  a  mar- 
ried woman  may  contract  with  and  sue  persons  other 
than  her  husband  and  may  hold  property  as  if  sole.1 


1  A  promissory  note  from  husband  to  wife,  or  vice  versa,  is  void 
and  is  not  made  valid  by  a  transfer  to  a  third  person.  Woodward 
v.  Spurr,  141  Mass.  283;  Kneil  v.  Egleston,  140  Mass.  202.  But 
when  a  husband  borrows  money  from  his  wife  and  gives  a  promis- 
sory note  to  a  third  person,  who  then  transfers  to  the  wife,  (or  where 
the  maker  marries  the  payee)  the  note  is  good  and  may  be  trans- 
ferred to  a  third  person  for  collection  at  law,  or  upon  death  of  hus- 
band may  be  paid  from  his  estate  to  her.  This  depends  upon  the 
original  validity  of  the  contract. 

Spooner  v.  Spooner,  155  Mass.  52. 

Crosby  v.  Clem,  209  Mass.  193  (a  mortgage). 

MacKeown  vs.  Lacey,  200  Mass.  437  (maker  married  payee) 


EQUITABLE  PARTIES  13 

Mass.  Rev.  Laws,  ch.  153,  sees.  1-9. 
Caldwell  v.  Nash,  190  Mass.  507. 

Wilson  v.  Bryant,  134  Mass.  291  (wife  can- 
not sue  husband  on  note  payable  to  third 
person). 

Fowle  v.  Torrey,  135  Mass.  87  (wife  can- 
not sue  husband's  partnership). 

Nolin  v.  Pearson,  191  Mass.  283.  (not  an 
equity  case,  but  a  general  discussion  by 
Braley,  J.) 

Atkins  v.  Atkins,  195  Mass.  124  (and  cases 
cited) 

MacKeown  v.  Lacey,  200  Mass.  437. 

Suits  permitted  in  equity  between  husband  and 
wife  are : 

1.  To  set  aside  ante-nuptial  contracts  procured  by 
fraud  (Nathan  v.  Nathan,  166  Mass.  294); 
to  compel  carrying  out  of  ante-nuptial  or 
post-nuptial  contracts  in  marriage  settle- 
ments, or  to  protect  rights  under  such  settle- 
ments; (see  dictum  in  Frankel  v.  Frankel, 
173  Mass.  214). 

2.  To  protect  a  wife's  equitable  interest  from  en- 
croachment by  her  husband  (and  probably 
vice  versa). 

Ayer  v.  Ayer,  16  Pick.  327  (suit  by  wife, 
beneficiary  under  a  trust,  against  the 
trustee  and  her  husband,  who  was  wrong- 
fully receiving  income  from  trustee). 

Atlantic  Bank  v.  Tavener,  130  Mass.  407 
(Quaere  as  to  whether  loan  to  him  may 
create  equity  in  her  favor). 

Holmes  v.  Winchester,  133  Mass.  140  (see 
dictum). 

3.  To  recover  property  obtained  from  the  one  by 


14  EQUITY  AND   ITS   REMEDIES 

the  other  by  fraud  or  coercion;  or  detained 
against  fhe  owner's  will. 

Atkins  v.  Atkins,  195  Mass.  124  (recon- 
veyance ordered  of  land  conveyed  by 
trustee  to  wife  through  a  conduit,  for 
which  she  failed  to  pay  as  agreed). 

Frankel  v.  Frankel,  173  Mass.  214  (wife 
against  husband  for  money  fraudulently 
obtained  from  her.  Decree  for  repay- 
ment). 

Lombard  v.  Morse,  155  Mass.  136  (husband 
against  wife  for  property  obtained  from 
him,  an  insane  person,  the  day  before 
marriage). 

Martin  v.  Barnes,  214  Mass.  29  (mortgages 
and  notes). 

Patterson  v.  Patterson,  197  Mass.  112 
(furniture). 

Shepherd  v.  Shepherd,  196  Mass.  179  (dis- 
cussion of  when  wife  is  creditor  of  hus- 
band). 

A  husband  or  wife  may  not  recover  at  law  or  in  equity 
of  the  other,  or  of  a  partnership  of  which  the  other 
is  a  member,  or  of  the  other's  estate,  for  money  loaned 
(Clark  v.  Patterson,  158  Mass.  388.  But  as  to  other 
personal  property  see  Patterson  v.  Patterson,  supra). 
But  see  (in  Holmes  v.  Winchester,  133  Mass.  140) 
an  important  dictum  to  the  effect  that  a  promise  of 
a  husband  to  give  his  wife  certain  stock,  for  a  val- 
uable consideration  which  had  passed,  could  be  spe- 
cifically enforced. 

4.    To  follow  and  recover  property  entrusted  by  one 


EQUITABLE  PARTIES  15 

to  the  care  of  the  other  and  fraudulently  in- 
vested by   the  other   as   his   (or   her)   own;1 

Bresnihan  v.  Sheehan,  125  Mass.  11  (hus- 
band's wages,  entrusted  to  wife,  invested 
by  her) 

Kershaw  v.  Merritt,  194  Mass.  113  (equit- 
able replevin  by  wife  to  recover  property 
pledged  by  her  husband) 

But  a  wife  has  no  claim  against  her  husband  if  she 
entrusts  money  to  him  without  evidence  as  to  the 
terms  on  which  it  was  entrusted. 

Jacobs  v.  Hesler,  113  Mass.  157. 

5.  To  obtain  her  equity  to  a  settlement  from  her 
own  property  where  a  husband  came  (before 
present  statutes)  into    equity  to  reduce  her 


1  In  Massachusetts  a  man  may  not  (except  of  articles  enumerated 
in  Revised  Laws,  ch.  153,  sec.  3,  and  except  of  gifts  causa  mortis, 
which  see  infra)  make  a  valid  gift  or  transfer  of  personal  property 
directly  to  his  wife.  (But  see  Porter  v.  Wakefield,  146  Mass.  25.) 
An  attempted  gift  is  still  his  property  and  may  be  attached  as  such 
by  his  creditors  or  demanded  by  him  of  third  persons  to  whom  she 
may  have  entrusted  it  (Brown  v.  Brown,  174  Mass.  197) ;  but  such 
an  attempted  gift  may  be  so  far  valid  as  to  give  the  wife,  if  she  has 
had  separate  custody  of  the  property  during  life,  a  right  to  the 
property  at  the  death  of  her  husband,  as  against  his  heirs  or  executors, 
but  not  as  against  his  creditors.  (Marshall  v.  Jaquith,  134  Mass. 
138.) 

A  husband  may  make  a  gift  to  his  wife  (valid,  except  as  to  his 
creditors)  through  a  third  person;  and  a  transfer  in  this  manner  is 
not  voluntary  and  is  good  as  against  his  creditors  if  in  payment 
of  money  loaned  him  by  her  or  as  compensation  for  her  release  of 
dower.  (Brown  v.  Brown,  supra;  Atlantic  Bank  v.  Tavener,  130 
Mass.  407;  Holmes  v.  Winchester,  133  Mass.  140.) 

He  may  even  make  her  his  agent  to  take  money  to  a  bank  to  be 
deposited  and  then  drawn  by  her  as  her  own.  (Brown  v.  Brown, 
*upra.    But  cf.  Spelman   v.  Aldrich,  126  Mass.  113.) 

A  husband  may  make  a  gift  causa  mortis  directly  to  his  wife 
(Whitney  v.  Wheeler,  116  Mass.  490)  in  Massachusetts  and  by 
statute  may  now  convey  land  directly  to  her.   Mass.  St.  1912,  ch.  304, 


16  EQUITY  AND   ITS   REMEDIES 

personal  property  to  possession.  Equity  com- 
pelled provision  for  a  wife  (even  if  bankrupt 
husband's  assignee  came  in),  though  at  com- 
mon law  he  had  legal  title  to  the  property. 

Davis  v.  Newton,  6  Met.  537. 

B.   Suits  between  Partners. 

At  common  law  one  partner  may  not  sue  the 
other3  on  a  partnership  matter,  except  as  hereinafter 
set  forth. 

Capen  v.  Barrows,  1  Gray  376  (breach  of  a 
covenant  in  partnership  agreement). 

Suits  at  Law. 

But  if  all  debts  are  paid  and  accounts  closed,  leav- 
ing an  ascertained  balance  due  one  partner  from  the 
other,  the  one  partner  may  sue  the  other  in  an  action 
at  law  for  it. 

Robinson  v.  Williams,  8  Met.  454. 

Sikes  v.  Work,  6  Gray  433  (and  in  Mass. 
even  though  the  amount  due  has  not  been 
ascertained). 

Nor  is  it  necessary  in  Massachusetts  that  all 
accounts  due  the  firm  shall  have  been  collected,  if  a 
tender  is  made  to  assign  to  the  other  partner  the 
outstanding  accounts. 

Williams  v.  Hershaw,  11  Pick.  79. 

And,  too,  a  partner  may  sue  another  in  an  action 
at  law  on  a  contract  with  him,  binding  personally, 
though  relating  to  the  firm  affairs. 


3  Nor  may  one  partnership  sue  another  where  one  person  is  a 
member  of  both  firms.    Cole  v.  Reynolds,  18  N.  Y.  74. 


EQUITABLE  PARTIES  17 

Chamberlain  v.  Walker,  10  Allen  429. 

Ryder  v.  Wilcox,  103  Mass.  24  (dictum  at 
page  29.  Personal  note  for  money  bor- 
rowed to  pay  obligation  to  firm). 

Or  he  may  sue  in  tort  for  fraudulently  inducing 
him  to  enter  the  partnership. 

Perry  v.  Hale,  143  Mass.  540. 

Suits  in  Equity. 

All  suits  between  partners  involving  the  partnership 
must  be  in  equity. 

The  more  important  are  for: 

1.  Establishment  of  Partnership. 

A  partnership  may  exist  where  the  parties  have 
given  no  consideration  to  the  nature  of  their  business 
relation.     Equity  may  declare  the  partnership. 

Emerson  v.  Atkinson,  159  Mass.  356. 

2.  Regulation  of  Partnership. 

Equity  will  restrain  one  partner,  upon  the  suit  of 
another,  from  violating  the  partnership  agreement, 
from  misapplying  the  firm  property,  or  from  frau- 
dulently acquiring  an  advantage  with  relation  to  a 
firm  lease  or  agency. 

Holmes  v.  Darling,  213  Mass.  203. 
Lurie  v.  Pinanski,  215  Mass.  229. 

3.  Dissolution  of  Partnership. 

A  partnership  may  be  dissolved  in  equity  where 
there  is  a  definite  term,  and  some  partner  does  not 
agree  to  an  earlier  dissolution  which  justice  may 
seem_to  require. 


18  EQUITY  AND   ITS  REMEDIES 

Smith  v.  Everett,  126  Mass.  304  (where  one 
member  was  led  into  firm  by  false  repre- 
sentations of  other) 

Richards  v.  Todd,  127  Mass.  167  (fraudu- 
lent representations;  the  results) 

Arnold  v.  Brown,  24  Pick.  89  (habitual 
drunkenness  of  partner) 

Parsons  on  Partnership,  sec.  358. 

A  partnership  at  will  is  treated  as  dissolved  from 
the  date  of  filing  a  bill  for  accounting  and  dissolution. 

Wiggins  v.  Brand,  202  Mass.  141. 

4.    Final  Accounting  and  Settlement. 

This  may  be  granted  where  there  is  a  dissolution 
by  ending  of  the  term,  by  court  decree,  by  mutual 
agreement,  or  after  death  of  one  partner. 

Wiggins  v.  Brand,  202  Mass.  141  (rights  of 
dissolving  partner  discussed) 

Freeman  v.  Freeman,  136  Mass.  260  (one 
partner  dead) 

Toplifif  v.  Jackson,  12  Gray  565  (relief  in 
equity  sought  in  action  of  contract) 

Murphy  v.  Murphy,  217  Mass.  233  (to 
compel  administrator  of  deceased  partner 
to  release  interest  in  saloon,  under  agree- 
ment made  inter  vivos) 

An  equity  court  has  full  power  to  appoint  a  receiver, 
order  claims  proved,  assets  sold  and  proceeds  of  sale 
distributed  to  creditors  and  partners,  even  though  the 
firm  afterwards  turns  out  to  be  insolvent. 

White  v.  White,  169  Mass.  52. 
The  limitation  of  the  period  for  bringing  suits  for 


EQUITABLE  PARTIES  19 

an  accounting  begins  to  run  from  the  termination 
of  the  partnership. 

McMahon  v.  Brown,  219  Mass.  23. 

5.    Contribution  between  Partners. 

A  partner  who  has  paid  more  than  his  share  of 
partnership  debts  is  entitled  in  a  suit  in  equity  to 
recover  full  contribution  from  his  solvent  co-partners 
within  the  court's  jurisdiction. 

Whitcomb  v.  Converse,  119  Mass.  38. 
Whitman  v.  Porter,  107  Mass.  522. 

One  may  have  an  accounting  against  his  partner 
when  the  firm  has  ceased  to  do  business,  though 
it  is  not  actually  dissolved. 

Lovejoy  v.  Bailey,  214  Mass.  134. 

But  a  bill  in  equity  should  be  for  a  general4  account- 
ing and  not  for  contribution  as  to  a  single  item  paid 
by  the  plaintiff. 

Phillips  v.  Blatchford,  137  Mass.  510. 

C.  Certain  Suits  between  Persons  Having  or 
Claiming  Interests  in  a  Common  Subject 
Matter,  which  Interests  Fall  Short  of 
Constituting  a  Partnership,  are  Brought 
in  Equity. 

1.   Suits  between  co-owners. 

In  some  states  co-owners  of  real  estate,  not  co- 
partners,   may   still   have   partition   proceedings   in 


*  But  quaere  as  to  whether  all  partners  must  be  joined  as  defend- 
ants.    Bowker  v.  Torrey,  215  Mass.  547. 


20  EQUITY  AND   ITS   REMEDIES 


e 


jquity.     Co-owners    of    chattels    may    do    this    in 
Massachusetts. 

Mass.  Rev.  Laws,  ch.  159,  sec.  3,  cl.  4 
(of  chattels.     Passed  in  1891) 

Blood  v.  Blood,  110  Mass.  545  (no  juris- 
diction before  above  statute) 

2.  Suits  where  there  are  three  or  more  parties  having 
"distinct  rights  or  interests  which  cannot  be  justly  and 
definitely  decided  and  adjusted  in  one  action  at  law." 

Mass.   Rev.   Laws,   ch.    159,    sec.   3,   cl.   3. 

In  an  action  at  law  several  plaintiffs  in  the  same 
suit  must  have  a  joint  interest  in  the  subject  matter. 
So  must  several  defendants. 

In  equity,  persons  having  distinct  interests  in  the 
subject  matter  may  be  joined  as  parties  plaintiff  or 
defendant  in  certain  causes  where  a  judgment  be- 
tween two  of  the  parties  would  leave  open  to  one  or 
both  a  controversy  with  a  third  party. 

(Bill  by  administrator  against  numerous 
holders  of  notes  of  a  series,  to  determine 
validity,  dependent  on  same  facts  in  each 
case.) 

Carr  v.  Silloway,  105  Mass.  543. 

3.  Suits  in  which  a  stakeholder  summons  several 
persons  claiming  a  fund,  debt  or  property  from  the 
same  source,  for  the  purpose  of  determining  to  whom 
he  is  liable.     Such  a  suit  is  known  as  interpleader. 

Cobb  v.  Rice,  130  Mass.  231  (custodian  of 
bonds  against  former  owner's  wife  and 
bankruptcy  trustees  to  determine  ambig- 
uity as  to  ownership) 

Morse  v.  Stearns,  131  Mass.  389  (legatee 
incorrectly  named) 


EQUITABLE  PARTIES  21 

Order  of  the  Golden  Cross  v.  Merrick,  163 
Mass.  374  (to  determine  to  whom  benefit 
fund  should  be  paid) 

Bodman  v.  Am.  Tract  Society,  9  Allen  447 
(ambiguity  as  to  legatee,  where  two  of 
same  name) 

Union  Bank  v.  Pool,  143  Mass.  203  (mort- 
gagee, after  foreclosure,  as  to  surplus) 

Robinson  v.  Wiley,  188  Mass.  533  (by 
attorney  against  his  client  and  client's 
alleged  assignee) 

Cogswell  v.  Newburyport  Inst,  for  Sav.,  165 

Mass.  524  (by  administrator  against  bank 

and  claimant) 

The   object  of  interpleader   is   not   to   protect  a 

person  against  double  liability  but  against  double 

vexation  on  account  of  one  liability. 

Fairbanks  v.  Belknap,  135  Mass.  179,  at 
184. 

National  Security  Bank  v.  Batt,  215  Mass. 
489. 

One  may  not  bring  interpleader, 

a.  If  he  claims  any  part  of  the  fund  himself; 

Ladd  v.  Chase,  155  Mass.  417  (an  executor 
who  was  also  residuary  legatee.) 

But  see  Cogswell  v.  Newburyport  Inst,  for 
Savings,  supra. 

b.  Or  if  not  a  disinterested  stakeholder; 

National  Life  Ins.  Co.  v.  Pingrey,  141  Mass. 

411  (where  an  insurance  company  might 

be  liable  to  two  persons). 
Conn.  Mutual  Life  Ins.  Co.  v.  Cook,  219 

Mass.  222&. 
Stone  v.  Reed,  152  Mass.  179. 

6  See  page  22. 


22  EQUITY  AND  ITS   REMEDIES 

c.  Or  if  the  several  claims  are  distinct  in  origin; 

Third  Nat'l  Bank  v.  Skillings,  132  Mass.  410. 

Macy  v.  Nantucket,  121  Mass.  351  (against 
two  towns  to  see  in  which  plaintiff  is 
properly  taxed). 

Welch  v.  Boston,  208  Mass.  326  (overturn- 
ing, as  a  precedent,  Forest  River  Lead 
Co.  v.  Salem,  165  Mass.  193,  in  which 
boundary  between  Salem  and  Marblehead 
was  determined  on  interpleader  in  tax 
case). 

d.  Or  if  there  has  been  judgment  against  the 

stakeholder  on  one  claim. 
Provident  Inst.  v.  White,  115  Mass.  112. 

The  first  decree  in  interpleader  is  that  the  defend- 
ants interplead,  after  which  plaintiff  may  not  be 
heard.  A  final  decree  then  determines  to  which 
claimant  the  fund  or  property  belongs  and  directs 
its  delivery  by  the  plaintiff. 

Houghton  v.  Kendall,  7  Allen  72. 

Conn.  Mutual  Life  Ins.  Co.  v.  Cook5,  219 
Mass.  222 (see  motion  for  decree  therein). 

By  statute  in  many  jurisdictions  a  stakeholder,  rf 
sued  at  law  or  in  equity,  may  cause  to  be  summoned 
to  defend  the  suit  any  adverse  claimant,  in  which 
case  the  ownership  of  the  fund  is  determined  equit- 
ably. This  is  sometimes  called  "statutory  inter- 
pleader." 


5  In  this  case  the  claimants  alleged  by  the  petitioner  were  an 
insured  and  an  assignee  of  the  insured.  The  latter's  answer  claimed 
that  the  company  was  obligated  to  him  in  the  matter,  apart  from 
the  assignment.  The  plaintiff,  by  failing  to  join  issue,  admitted 
the  truth  of  the  answers.  The  plaintiff  paid  the  insurance  money 
into  court  and  moved  it  be  relieved  from  liability  and  the  defend- 
ants ordered  to  interplead.  Bill  was  dismissed  because  there  was 
a  claim  which  could  not  be  adjudicated  between  the  defendants 
alone. 


EQUITABLE  PARTIES  23 

Mass.    Rev.    Laws,    ch.    173,    sees.    37,  38. 

Mass.  St.  1908  ch.  590,  sec.  50. 
Russell  v.  Webster,  213  Mass.  491  (bill  by 

alleged  donee  against  stakeholder  of  stock 

and  a  claimant). 
Brierly  v.  Equitable  Aid  Union,  170  Mass. 

218. 
Nelson  v.  Piper,  213  Mass.  531. 
Phillips  v.  Suffolk  Savings  Bank,  etc.,  219 

Mass.  597. 

"A  bill  in  the  nature  of  a  bill  in  interpleader116  is, 
strictly  speaking,  one  in  which  a  plaintiff  who  has 
some  equitable  interest  in  the  subject  matter  seeks  to 
establish  his  interest  against  some  one  of  two  or 
more  claimants  of  some  other  interest. 

Killian  v.  Ebbinghans,  110  U.  S.  568. 
Aleck  v.  Jackson,  49  N.  J.  Eq.  507;  2    Ames 
45. 

See  cases  in  note,  2  Ames  46. 


6  The  distinction  in  Massachusetts  between  strict  interpleader  and 
"bills  in  the  nature  of  bills  of  interpleader"  has  not  always  been 
observed.  Nor  are  the  strict  requisites  of  either  important  where 
jurisdiction  may  be  brought  within  ch.  159,  sec.  3,  clause  3,  of  the 
Revised  Laws.  Hammond  v.  Putnam,  110  Mass.  232  (incorrectly 
called  "in  the  nature  of  a  bill  of  interpleader");  Macy  v.  Nantucket, 
121  Mass.  351. 


24  EQUITY  AND  ITS   REMEDIES 


CHAPTER   III. 

SOME  FEATURES  OF  EQUITY  JURISDICTION 
AND   PROCEDURE. 

A.  Plain,   Adequate  and   Complete   Remedy  at 

Law. 

a.  Its  absence  a  basis  of  relief  in  equity. 

b.  Its  presence  as  a  defense  to  equitable  pro- 

cedure. 

c.  Its  presence  in  some  cases  immaterial. 

d.  As  affecting  procedure. 

B.  The  Jury  in  Equity. 

C   Equity  Acts  in  personam,  not  in  rem. 

A.   "Plain,    Adequate    and    Complete 
Remedy  at  Law." 

Definition:  Ah  adequate  remedy  at  law  has  been 
defined  as  one  "as  practical  and  efficient  to  the  ends 
of  justice  and  its  prompt  administration  as  the  rem- 
edy in  equity." 

a.   Its  absence  a  basis  of  relief  in  equity. 

The  inadequacy  of  legal  remedies  was  one  cause 
ol  the  rise  of  equity  jurisdiction.  In  respect  to  some 
subject  matter,  parties,  and  remedies,  that  juris- 
diction is  exclusive,  as  has  been  seen.  In  respect  to 
other  subject  matter,  where  the  estate,  title  or  in- 
terest in  dispute  is  legal  and  the  law  courts  afford 
a  remedy  similar  in  form  to  that  of  the  equity  courts 
(as  money  damages)  but  where  the  method  of  reach- 
ing this  remedy  under  law  procedure  is  not,  upon 


SOME  FEATURES  OF  EQUITY  JURISDICTION  25 

the  facts  of  a  case,  plain,  adequate  and  complete, 
then  jurisdiction  at  law  and  in  equity  is  concurrent. 

Jones  v.  Newhall,  115  Mass.  244  (1874)1 
(excellent  discussion). 

Pierce  v.  Equitable  Life  Assurance  Soc, 
145  Mass.  56  (equitable  accounting  on 
tontine  policy  because  of  complexity  of 
accounts). 

Smith  v.  Smith,  148  Mass.  1  (relief  in  nui- 
sance is  not  to  determine  legal  right,  but 
because  of  inadequacy  of  legal  remedy). 

Or  the  inadequacy  of  legal  remedies  may  con- 
sist in  the  necessity  at  law  of  bringing  actions  against 
various  people,  or  successive  actions  against  the  same 
person.  In  certain  cases,  the  jurisdiction  in  equity 
is  based  od  the  desirability  of  avoiding  a  multiplicity 
of  suits  at  law.  The  equity  court  may  settle  the 
entire  controversy  in  one  suit.2 

Slater  v.  Gunn,  170  Mass.  509  (trespass). 

Boston  &  Maine  R.  R.  v.  Sullivan,  177  Mass. 
230  (to  avoid  successive  actions  against 
same  person). 

Carr  v.  Silloway,  105  Mass.  543  (to  avoid 
numerous  actions  against  various  persons). 

M.  Steinert  &  Sons  Co.  v.  Tagen,  207  Mass. 
394  (repeated  malicious  acts  in  a  strike, 
though  no  evidence  of  damages). 

Stevens  v.  Rockport  Granite  Co.,  216  Mass. 
468  (nuisance). 

But   equity    does    not    take    jurisdiction    on   this 


1  This  case  was  decided  before  the  Massachusetts  courts  had  full 
equity  jurisdiction.    See  table  on  Page  5. 

2  See  subdivision  C  under  Equitable  Parties,  Chapter  II. 


26  EQUITY   AND   IT  REMEDIES 

ground,  where  there  are  different  persons  named  as 
defendants,  whose  obligations  are  several. 

Rogers  v.  Boston  Club,  205  Mass.  261  (suit 
by  receiver  against  club  members  for 
dues  owed). 

Or  the  greater  adequacy  of  equitable  relief  over 
legal  in  a  particular  case  may  result  from  the  greater 
flexibility  of  the  equitable  remedies.  An  attach- 
ment of  a  law  court  reaches  only  property  capable 
of  being  taken  on  execution;  while  equity,  acting  in 
personam,  is  able  to  reach  property  of  such  a  nature 
that  it  cannot  be  taken  on  execution. 

Wilson  v.  Martin-Wilson,  etc.  Co.,  149  Mass. 
24  (creditor's  bill  to  reach  interest  in 
patent,  owned  by  a  foreign  corporation 
doing  business  here). 

b.   Its  presence  as  a  defense  to  equitable  procedure. 

Conversely,  equity  does  not  ordinarily  take  juris- 
diction of  a  matter  where  the  relief  afforded  in  a 
law3  court  is  plain,  adequate  and  complete.4  This 
is  true, — 

1.  Where  some  remedy  at  law,  open  to  the  plain- 
tiff, would  afford  the  same  relief  as  that  sought  in 


'  But  where  the  legal  remedy  sought  is  certiorari  (a  remedy  at  law) 
it  is  a  defense  that  there  is  an  adequate  remedy  in  equity.  Rudnick 
p.  Murphy,  213  Mass.  470. 

*  This  principle  is  as  old  as  English  Chancery  jurisdiction,  is  in  the 
U.  S.  Judiciary  Act  of  1789  (now  36  U.  S.  Stats,  at  Large  1163), 
was  formerly  expressly  stated  in  the  Massachusetts  Statutes  (see 
Public  Statutes,  chap.  151,  sec.  2),  but  is  omitted  in  the  Revised 
Laws,  which  (in  chap.  159)  afford  juridiction  in  equity  of  all  mat- 
ters cognizable  under  the  general  principles  of  equity  jurisprudence. 
It  is  expressly  made  a  condition  of  equitable  jurisdiction  under  some 
statutes,  however.  See  Mass.  St.  1914  ch.  778,  relative  to  injunc- 
tions in  industrial  disputes. 


SOME  FEATURES  OF  EQUITY  JURISDICTION  27 


the  bill,  or  one  equally  adequate  under  the  particular 
facts. 

Farrar  v.  Pillsbury,  217  Mass.  330  (failure 
to  pay  off  a  mortgage,  as  agreed). 

Adams  v.  Messinger,  147  Mass.  185  (general 
discussion). 

Greenhood  v.  MacDonald,  183  Mass.  342 
(will  not  lie  to  restrain  collection  of  taxes). 

Allen  v.  Hunt,  213  Mass.  276  (equity  will 
not  determine  what  could  be  determined 
by  probate  accounting). 

Preston  v.  Newton,  213  Mass.  483  (owner  of 
land  illegally  taken  by  municipality  has 
remedy  at  law). 

Thus,  while  equity  will  always  compel  specific 
performance  of  proper  contracts  to  convey  land,  art 
treasures,  shares  in  close  corporations,  patents,  etc., 
it  will  leave  the  agreed  vendee  to  his  action  for  dam- 
ages at  law,  as  an  adequate  remedy,  if  the  subject 
matter  is  ordinary  personal  property,  government  or 
municipal  bonds,  and  (except  in  some  jurisdictions, 
as  England  and  Massachusetts)  other  shares  com- 
monly dealt  in,  on  the  market. 

Old  Colony  R.  Corp.  v.  Evans,  6  Gray  25 
(land). 

Somerby  v.  Buntin,  118  Mass.  279  (patents). 

Leach  v.  Fobes,  11  Gray  506  (Mass.  rule  on 
stocks). 

Clark  v.  Flint,  22  Pick.  231  (ordered  as  to 
other  personal  property  where  purchase 
money  is  paid  but  vendor  becomes  insol- 
vent before  delivery). 

2.  Where  the  facts  of  the  particular  case  are  not 
embraced   in   any   equitable    doctrine,    because    the 


28  EQUITY    AND    ITS    REMEDIES 

relief  of  the  law  courts,  by  a  wholly  different  kind 
of  remedy,  has  always  been  regarded  as  adequate. 

N.  E.  Mut.  Life  Ins.  Co.  v.  Phillips,  141 
Mass.  535. 

c.  Its  presence  in  some  cases  immaterial. 

Today,  in  courts  of  general  equity  jurisdiction  (such 
as  Massachusetts,  since  1877)  relief  may  be  had  in 
certain  cases  either  at  law  or  in  equity,  at  the  election 
of  the  plaintiff. 

Billings  v.  Mann,6  156  Mass.  203  (deed 
obtained  by  fraud.  Remedy  by  writ  of 
entry  at  law  or  cancellation  in  equity). 

Nathan  v.  Nathan,  166  Mass.  294  (fraud 
in  ante-nuptial  contract). 

d.  As  affecting  procedure. 

While  courts  of  general  equity  powers  may  enter- 
tain bills  relating  to  matters  in  their  nature  within 
the  concurrent  jurisdiction  of  such  courts,  yet  the 
usual  practice  is  to  remit  parties  in  such  cases  to 
their  remedy  at  law,  provided  that  be  adequate; 
but  independent  of  statute  restrictions,  the  objection 
is  a  matter  of  equitable  discretion  rather  than  of 
jurisdictional  right  (and  therefore  not  always  avail- 
able on  demurrer).6 

Jones  v.  Newhall,  115  Mass.  at  page  252 
(citing  English  cases,  which  see). 

Suter  v.  Matthews,  115  Mass.  253  (fraud). 

The  failure  of  the  defendant  to  raise  in  the  plead- 
ings the  objection  that  there  is  an  adequate  remedy 


5  Compare  Boardman  v.  Jackson,  119  Mass.  161. 

*  Prior  to  the  general  equity  jurisdiction  in  Massachusetts  (in 
1877),  the  objection  was  properly  raised  by  demurrer. 
Jones  v.  Newhall  (supra). 
Clark  v.  Flint,  22  Pick.  231. 


SOME  FEATURES  OF  EQUITY  JURISDICTION  29 

at  law,  or  his  waiver  of  the  question  in  argument, 
does  not  give  a  court  in  equity  jurisdiction  over  a 
case  which  because  of  the  subject  matter  has  no 
standing  in  equity. 

Moseley  v.  Bolster,  201  Mass.  135  (parti- 
tion will  not  be  made  in  equity  in  Mass- 
achusetts, though  incidental  questions 
may  be  there  determined). 

N.  E.  Mut.  Life  Ins.  Co.  v.  Phillips,  141 
Mass.  535  (to  determine  whether  certain 
persons  have  been  legally  chosen  directors 
of  a  corporation). 

Kenny  v.  Consumers  Gas  Co.,  142  Mass. 
417  (information  by  Attorney-General  at 
relation  of  private  individual  cannot  be 
used  to  enjoin  exercise  of  public  func- 
tions). 

Dunham  v.  Presby,  120  Mass.  285  (bill  for 
accounting  of  partnership  profits  in  illegal 
trading). 

Cox  v.  Maiden  and  Melrose  Gas  Light  Co., 
199  Mass.  324  (mandamus  is  proper 
remedy  to  compel  corporation  to  perform 
quasi-public  duty). 

But  such  failure  may  give  the  court  jurisdiction 
if  the  subject  matter  is  of  a  kind  that  equity  may 
assume  jurisdiction  of  on  any  facts;  or  may  give  the 
court  jurisdiction  of  persons  not  otherwise  under 
its  control. 

Fourth  National  Bank  v.  Mead,  214  Mass. 

549  (rule  stated). 
Detroit   v.   Detroit   Citizens'   St.    Ry.    Co., 

184  U.  S.  368  (good  discussion). 
Creely  v.  Bay  State  Brick  Co.,  103  Mass. 

514  (nuisance). 
Whiting  v.  Burkhardt,  178  Mass.  535  (bill 

by  assignee  of  mortgagee's  interest,  under 


30  EQUITY  AND   ITS   REMEDIES 

insurance  policy,   to  recover  amount   of 
policy  from  company). 

Allen  v.  Hunt,  213  Mass.  276  (cases  col- 
lected). 

And  in  such  cases  the  objection,  though  properly 
pleaded,  will  be  deemed  to  be  waived,  unless  con- 
tended for  at  the  hearing. 

Page  v.  Young,  106  Mass.  313. 

Bauer  v.  International  Waste  Co.,  201  Mass. 
197. 

An  equity  court  having  obtained  jurisdiction  over 
a  cause  for  any  purpose,  may  retain  it  for  all  pur- 
poses and  proceed  under  the  prayer  for  general  relief 
to  a  determination  of  all  matters  in  issue,7  although 
a  court  of  law  could  grant  the  same  relief.  This  is 
for  the  purpose  of  preventing  a  multiplicity  of  suits. 

Winslow  v.  Nayson,  113  Mass.  411  (bill 
for  injunction  to  prevent  trespass  retained 
to  award  damages). 

Long  v.  Athol,  196  Mass.  497  (bill  for  can- 
cellation of  contract;  recovery  for  work 
and  labor). 

Smith  v.  Everett,  126  Mass.  304  (bill  for 
cancellation  of  partnership  articles  en- 
tered into  by  fraud;  repayment  of  money 
ordered). 

Page  i'.  Franklin,  214  Mass.  552  (damages 
for  contractual  breach  in  suit  to  compel 
mortgage  discharge). 

But  if  the  plaintiff  fails  to  show  his  cause  within 
equitable  jurisdiction  at  all,  the  court  will  not  deal 
with  the  strictly  legal  rights  and  remedies  involved, 
but  will  dismiss  the  bill  without  prejudice,  or  (in 


7  But  eee  Revere  v.  Revere  Water  Co.,  218  Mass.  161. 


SOME  FEATURES  OF  EQUITY  JURISDICTION  31 

Massachusetts)  may  permit  the  action  to  be  changed 
by  amendment  into  a  suit  at  law. 

Mitchell  v.  Dowell,  105  U.  S.  430. 

Mass.  Rev.  Laws,  ch.  159,  sec.  6;  ch.  173, 
sec.  52;  as  amended  by  St.  1911  ch.  275. 

Cromwell  v.  Norton,  193  Mass.  291  (case 
changed  from  equity  to  law). 

But  where  a  plaintiff,  entitled  to  relief  in  equity, 
brings  his  bill,  but,  pendente  lite,  there  is  such  a 
change  in  circumstances  as  to  make  equitable  relief 
inappropriate,  the  court  will  retain  the  bill  and  award 
damages,  if  these  are  appropriate. 

Lexington  Print  Works  v.  Canton,  171  Mass. 
414. 

In  a  case  where  the  plaintiff,  seeking  specific  per- 
formance, discovers  that  before  the  bill  was  brought, 
the  defendant  has  made  specific  performance  impossi- 
ble, the  court  may  retain  the  bill  and  award  damages. 

Milkman  v.  Ordway,  106  Mass.  232. 

In  controversies  concerning  property,  equity  does 
not  take  jurisdiction  (apart  from  statute)  of  cases 
involving  less  than  one  hundred  dollars,  unless  there 
is  some  peculiar  value  in  the  property  aside  from  its 
intrinsic  worth. 

Chapman  v.  Banker  &  Tradesman  Co., 
128  Mass.  478 8  (equitable  attachment  by 
"statutory  creditor's  bill."  Less  than 
one  hundred  dollars.     No  jurisdiction). 

Wilkinson  v.  Stitt,  175  Mass.  581  (juris- 
diction taken  in  matter  of  a  prize  cup 
worth  sixty  dollars,  which  had  sentimental 
value  to  bicycle  club). 


8  Decided  prior  to  St.  1884,  ch.  285  (now  part  of  Revised  Laws, 
ch.  159,  sec,  3  cl.  7). 


32  EQUITY    AND    ITS    REMEDIES 

Mass.  Rev.  Laws,  ch.  159,  sec.  3,  cl.  7  (giv- 
ing jurisdiction  in  certain  cases). 

B.   The  Jury  in  Equity. 

In  the  Federal  Courts  there  is  no  constitutional 
right  to  trial  by  jury  in  equity  or  admiralty;  although 
the  right  is  guaranteed  in  suits  at  common  law  by 
Article  VII  of  Amendments  to  U.  S.  Constitution. 

In  Massachusetts,  Article  15  of  the  Declaration 
of  Rights  gives  the  right  to  jury  trial  in  "all  contro- 
versies concerning  property,  and  in  all  suits  between 
two  or  more  persons,  except  in  cases  in  which  it  has 
heretofore  been  otherways  used  and  practised." 

This  exception  is  now  held  to  include  only  such 
equity  cases  as  were  within  Chancery  jurisdiction  in 
England  at  the  time  of  the  adoption  of  the  Massa- 
chusetts Constitution  in  1780.9  In  such  cases  there 
is  no  right  to  jury  trial  in  Massachusetts. 

Parker  v.  Simpson,  180  Mass.  334,  at  344. 

vShapira  v.  D'Arcy,  180  Mass.  377. 

Therefore,  in  cases  in  which  statutes  have  given 
relief  not  included  within  general  equity  jurisprudence 
in  1780,  the  defendant  at  least  has  a  right  to  trial 
by  jury. 

Powers  v.  Raymond,  137  Mass.  483  (statu- 
tory creditor's  bill). 

Stockbridge  v.  Mixer,  215  Mass.  415  (right 
to  jury  trial  as  to  essentially  legal  issues 
in  the  case,  but  not  as  to  those  purely 
equitable). 

It  will  be  deemed  that  a  jury  has  been  waived  unless 
the  demand  for  it  is  "seasonably  asserted."10 


9  The  exception  includes  also,  of  course,  divorce  and  probate  cases, 
and  the  extraordinary  writs  (such  as  mandamus,  etc.). 

10  In  an  equity  case,  the  jury  may  be  claimed  within  10  days  after 
the  replication  is  filed.    Stockbridge  v.  Mixer,  215  Mass.  415. 


SOME  FEATURES  OF  EQUITY  JURISDICTION  33 

Dole  v.  Wooldredge,  142  Mass.  161. 
Parker  v.  Nickerson,  137  Mass.  487  (where 
a  master  had  already  been  appointed). 

When  there  is  a  right  to  jury  trial,  issues  framed 
to  cover  the  disputed  points  may  be  submitted  to 
the  jury,  instead  of  the  whole  case. 

Proprietors  Charles  River  Bridge  v.  Prop. 

Warren  Bridge,  7  Pick.  344. 
Stockbridge  Iron  Co.  v.  Hudson  Iron  Co., 

102  Mass.  45. 

When  there  is  no  constitutional  right  to  jury  trial, 
the  court  under  statutes  may,  in  its  discretion,  at 
the  request  of  a  party,  submit  issues  to  a  jury;  and 
the  verdict  will  be  deemed  as  conclusive  as  a  verdict 
of  a  jury  at  law. 

Franklin  v.  Greene,  2  Allen  519. 
Kohn  v.  McNulta,  147  U.  S.  238. 
Parker   v.    Simpson,    180   Mass.    334    (jury 

trial   denied   because   over   one   hundred 

exhibits,  etc.). 

Mass.  Rev.  Laws.,  ch.  159,  sees.  36-38. 
Dexter  v.  Codman,  148  Mass.  421  (verdict 
set  aside). 

In  jurisdictions  other  than  Massachusetts,  it  is 
generally  the  rule  that  the  findings  of  a  jury  on  issues 
of  fact  are  only  advisory. 

Kohn  v.  McNulta,  supra. 
Metcalf  v.  Metcalf,  85  Me.  473. 

But  the  Supreme  Court  may  revise  the  discretion 
of  the  Superior  Court  in  refusing  to  frame  issues, 
where  there  is  no  constitutional  right,  but  will  not 
do  so  unless  the  party  asking  revision  shows  the  case 
to  be  one  more  satisfactorily  tried  before  a  jury  than 
a  judge. 


A 


34  \  EQUITY  AND   ITS   REMEDIES 

Culbert  v.  Hall,  181  Mass.  24. 

C.      Equity   Acts   in   Personam,   not  in   Rem.11 

Apart  from  statutes,  decrees  in  equity  do  not 
operate  of  themselves  to  transfer  rights  or  titles  of 
property  nor  do  they  operate  against  the  whole 
world.  They  direct  parties  to  the  action  to  do  or  not 
to  do  certain  specific  acts;  the  penalty  for  disobe- 
dience is  punishment  for  contempt. 

Dillon  v.  Heller,  39  Kansas  599;  Ames,  14. 

McCann  v.  Randall,  147  Mass.  81. 

Wilson  v.  Martin- Wilson  etc.  Co.,  151  Mass. 
515. 

Where  the  parties  are  within  the  jurisdiction. 

A  suit  in  equity  cannot  ordinarily  be  maintained 
in  the  court  in  which  it  is  brought  against  a  resident 
of  that  or  any  other  jurisdiction  unless  he  is  found 
within  the  jurisdiction  and  served  with  process  there. 

Spurr  v.  Scoville,  3  Cush.  578. 

Merrill  v.  Beckwith,  163  Mass.  503;  Ames  19. 

Hart  v.  Sansom,   110  U.  S.  151;  Ames  11 
(cloud  on  title). 

Pingree  v.  Coffin,  12  Gray  288,  at  Page  305. 
See   note   page  21,   Ames;  see  also  Harris 
v.  Graham,  110  Fed.  Rep.  896. 

If  the  court  has  jurisdiction  of  the  parties,  it  is 
usually  immaterial  that  the  property  in  issue  lies 
outside  of  the  jurisdiction  of  the  court.  Equity  may 
order  specific  performance  of  an  agreement  relating 
to  such  property. 


11  For  other  meaning  of  these  phrases,  see  the  admirable  discussion 
by  Holmes  J.  in  Tyler  v.  Court  of  Registration,  175  Mass.  71. 


SOME  FEATURES  OF  EQUITY  JURISDICTION  35 

Penn  v.  Lord  Baltimore,  1  Vesey  444. 
Pingree  v.  Coffin,  12  Gray  288,  at  page  304. 
Adams  v.  Messinger,  147  Mass.  185. 

It  may  order  the  cancellation  of  a  deed  and  the 
re-conveyance  of  foreign  property.12 

Johnson  v.  Scott,  205  Mass.  294  (recission 
of  purchase  of  Maine  land,  for  fraud; 
decree  that  Maine  title  was  bad). 

Gardner  v.  Ogden,  22  N.  Y.  327;  Ames  6. 

It  may  enjoin  against  the  prosecution  of  a  suit 
in  another  jurisdiction. 

Kempson  v.  Kempson,  58  N.  J.  Eq.  94; 
Ames  26. 

Dehon  v.  Foster,  4  Allen  545. 

Carson  v.  Dunham,  149  Mass.  52. 

It  may  enjoin  against  the  commission  of  a  tort 
in  another  state. 

Great  Falls  Mfg.  Co.  v.  Worcester,  23 
N.  H.  462. 

Alexander  v.  Tolleston  Club,  110  111.  65. 

Carteret  v.  Petty,  2  Swanston  323,  Ames  21 
(not  decreed  because  of  practical  diffi- 
culty). 

An  equity  court  will  usually  refuse  to  foreclose 
a  mortgage  on  foreign  land,  as  a  matter  of  discretion. 


u  But  the  conveyance  of  foreign  land  by  a  master  appointed  by 
the  court  need  not  be  recognized  by  the  courts  where  the  land  is 
situated.  Fall  v.  Eastin,  215  U.  S.  1,  and  note  therewith.  The 
conveyance  of  land  by  the  owner  under  an  order  of  the  court  is,  how- 
ever, regarded  as  voluntary  and  therefore  usually  recognized  by  a 
foreign  court.    Witters  t>.  Globe  Sav.  Bk.,  171  Mass.  425. 


36  EQUITY  AND   ITS   REMEDIES 

Naton  v.  McCall,  86  Me.  350  (Nova  Scotia 
mortgage). 

The  jurisdiction  to  foreclose  undoubtedly  exists, 
and  is  frequently  exercised  in  the  case  of  railroad 
mortgages  covering  property  a  part  of  which  is  with- 
out the  jurisdiction. 

Muller  v.  Dows,  94  U.  S.  444. 

Union  Trust  Co.  v.  Olmstead,   102  N.  Y. 

729;  Ames  23   (railroad  in  part  in  Penn 

sylvania). 

Where  the  principal  parties  are  without  the  juris- 
diction. 

Where  the  subject  matter  (res)  is  within  the  juris- 
diction and  the  parties  without,  the  court  frequently 
finds  a  way  of  making  a  decree  affecting  the  subject 
matter. 

McCann  v.  Randall,  147  Mass.  81  (equitable 
attachment  of  U.  S.  Treasury  draft, 
payable  to  non-resident,  found  here  unin- 
dorsed in  custody  of  agent.  Injunction 
against  agent,  who  if  he  transfer  may  be 
compelled  to  pay,  himself)18 

Gahm  v.  Wallace,  206  Mass.  39  (attachment 
of  non-resident's  real  estate  without  ser- 
vice on  him.  Decree  that  if  he  should 
not  pay  in  thirty  days  property  be  taken 
on  execution). 

And  statutes  are  common  permitting  the  passing 
of  the  title  where  the  property  is  within  the  juris- 
diction but  the  defendant  is  outside  and  served  with 


u  In  Moors  v.  Ladenburg,  178  Mass.  272,  where  it  was  sought  to 
enjoin  a  proceeding  at  law  in  Massachusetts,  service  on  a  non-resident 
defendant's  Massachusetts  attorney  was  held  to  be  service  on  the 
defendant.  The  court  asserts  that  "When  you  have  a  res  within 
the  jurisdiction  of  the  court,  the  court  may  deal  with  it  although 
it  cannot  reach  the  person  of  the  owner."  This  statement  is  appar- 
ently broader  than  the  case. 


SOME  FEATURES  OF  EQUITY  JURISDICTION  37 

process  by  publication  only.  In  such  a  case  the 
jurisdiction  may  only  affect  the  particular  property 
and  not  bind  the  individual  so  as  to  be  recognized 
by  courts  of  other  jurisdictions. 

Pennoyer  v.  Neff,  95  U.  S.  714  (discussion 

of  "due  process  of  law"). 
Dillon  v.  Heller,  39  Kan.  599;  Ames  14. 
Arndt  v.  Griggs,  134  U.  S.  316. 
Short  v.  Caldwell,  155  Mass.  57. 
Tyler  v.  Court  of  Registration,  175  Mass.  71. 
Biggert  v.  Straub,   193  Mass.   77   (in  rem, 

under  a  statute). 

Restraining  suits  at  law. 

The  supremacy  of  equitable  over  legal  rules  is 
shown  in  the  fact  that  equity  may  restrain,  by  in- 
junction, either  party  to  a  law  suit,  either  within  or 
without  the  jurisdiction,  from  further  proceeding 
with  the  suit  or  with  a  particular  defense.14 

How  certain  decrees  are  made  operative. 

When  one  otherwise  liable  to  be  ordered  by  a  court 
of  equity  is  a  minor  or  insane,  the  only  decree  which 
the  court  will  make,  in  the  absence  of  statute,15  is 


"  See  Chapter  VIII  herein. 

15  In  Massachusetts  the  court  may  appoint  a  person  to  make  a 
conveyance  for  an  incompetent  or  absent  trustee,  or  require  a  guar- 
dian to  make  it,  and  a  decree  may  vest  a  title  without  a  conveyance. 
Rev.  Laws  ch.  147,  sees.  4-6  (title  of  new  trustee  vests  by 

virtue  of  appointment) 
Rev.  Laws  ch.  147,  sec.  17  (a  trustee  to  complete  a  sale) 
Merrill  v.  Beckwith,  163  Mass.   503;  Ames   19.     (not  to 
apply  to  non-resident  agreed  vendee  not  served  with 
process) 
Mass.  St.  1910,  ch.  376  (title  vests  without  conveyance 

where  party  directed  fails  to  obey  decree) 
Walsh  v.  Walsh,  116  Mass.  377 
Felch  v.  Hooper,  119  Mass.  52 
Nugent  9.  Cloon,  117  Mass.  219 

Eastern  Bridge    etc.,  Co.  v.  Worcester  Auditorium  Co., 
216  Mass.  426. 


38  EQUITY  AND   ITS   REMEDIES 

that  the  person  perform  the    decree  when  the  dis- 
ability is  removed. 

Pegge  v.  Skynner,  1  Cox  Eq.  23;  Ames  6 
(paralytic). 

Whitney  v.  Stearns,  11  Met.  319. 

The  plaintiff,  if  he  fears  that  the  defendant  is 
about  to  leave  the  state,  may  obtain  the  seldom  used 
writ  of  ne  exeat  regno  to  prevent  his  departing  with- 
out furnishing  security. 

Rice  v.  Hale,  5  Cush.  238. 
Griswold  v.  Hazard,  141  U.  S.  260. 


THE  MAXIMS  39 


CHAPTER  IV. 
THE  MAXIMS.1 

A.  Equity  will  not  suffer  a  wrong  to  be  with- 

out A   REMEDY. 

B.  Equity  follows  the  law. 

C.  Where  the  equities  are  equal,  the  law  will 

PREVAIL. 

D.  Where  interests  are  purely  equitable  and 

IN   OTHER   RESPECTS   EQUAL,    PRIORITY  IN   TIME 
GIVES    THE    BETTER    EQUITY. 

E.  Equity  treats  that  as  done  which  ought  to 

BE   DONE. 

F.  He  who  seeks  equity  must  do  equity. 

G.  He  who  comes  into  equity  must  come  with 

CLEAN    HANDS. 

H.  Equity  aids  the  vigilant. 

Underlying  the  doctrines  of  equity  and  at  the  basis 
of  this  system  of  jurisprudence  are  certain  general 
principles  called  maxims.  They  are  principally 
useful  today  because  they  show  the  spirit  of  equity. 
Among  them  are: 

A.   Equity  Will  Not  Suffer  a  Wrong 
to  be  Without  a  Remedy. 

This  does  not  refer  to  moral  wrongs  (as  ingratitude) 
but  only  to  such  wrongs  as  are  coupled  with  legal 
duties  and  to  such  remedies  as  are  consistent  with 


1  For  a  particularly  full  treatment  see  Eaton  on  Equity,  Ch.  Ill, 
and  Merwin,  Ch.  VI. 


40  EQUITY  AND   IT   REMEDIES 

the  laws  of  the  land  and  authorized  by  the  principles 
and  practises  of  courts  of  equity. 

Thus  equity  will  afford  relief,  where  a  statute  or 
constitution  creates  a  new  right,  equitable  in  nature, 
but  provides  no  method  for  its  enforcement. 

Hunter  v.  Boston,  218  Mass.,  535  (bond  with 
no  statutory  method  of  enforcing). 

Gibson  v.  Supervisors,  80  Cal.  363. 

Gilchrist  v.  Railroad  Co.,  58  Fed.  Rep.  708 
(lien  with  no  method  in  statute  of  enforc- 
ing). 

But  equity  will  not  on  this  ground  interfere  in 
contested  elections,  for  example,  as  these  are  matters 
over  which  equity  has  no  control  apart  from  statute. 

Dickey  v.  Reed,  78  111.  262. 
Skrine  v.  Jackson,  73  Ga.  377. 

The  mere  fact  that  a  legal  remedy  has  failed  under 
the  particular  circumstances  to  afford  the  relief, 
is  not  ground  for  the  application  of  this  maxim. 

Heine  v.  Commissioners,  19  Wall.  655. 

Rees  v.  Watertown,  19  Wall.  121  (where  a 
holder  of  bonds  had  brought  mandamus 
against  city  officials  to  force  payment  but 
failed  because  there  was  no  officer  who 
could  be  served  with  process.) 

B.   Equity  Follows  the  Law. 

I.  Equity  follows  legal  rules  when  legal  rights  are 
in  question  in  equity  courts.     Thus,  it  requires 

a.   Compliance  with  statutory  prerequisites  to 
the  validity  of  instruments; 

Townsley  v.  Chapin,  12  Allen  476  (deed). 


THE  MAXIMS  41 


b.  Conformity  to  legal  rules,  (as  where  a  wife 

or  her  assignee  has  claims  against  a  husband 
or  his  insolvent  estate); 

Fowle  v.  Torrey,  135  Mass.  87. 
Nat'l  Granite  Bank  v.  Tyndale,  176  Mass. 
,  547. 
Heard  v.  Stanford,  Cases  temp.  Talbot,  173.2 

c.  Application   of    same   rules    of    construction 

and  interpretation  of  instruments  as  at  law; 

Hedges  v.  Dixon  County,  150  U.  S.  182 
(case  of  municipal  bonds  invalid  from 
lack  of  authority). 

Merriam  v.Boston,  etc.,  Co.,  117  Mass.  241. 

d.  Adherence  to  same  rules  of  evidence,  and  of 

procedure; 

Hennessy  v.  Preston,  219  Mass.  61  (spe- 
cial contract  must  be  proven  in  bill  to 
reach  and  apply  in  same  way  as  in 
action  of  contract). 

Anthony  v.  Valentine,  130  Mass.  119 
(plaintiff  cannot  show  by  oral  evidence 
that  defendant  agreed  not  to  collect  a 
certain  note  except  on  certain  conditions. 

Strout  v.  United  Shoe  Mach.  Co.,  215 
Mass.  116  (in  the  allowance  of  amend- 
ments). 

e.  Distribution  of  legal  assets,  as  at  law. 

Jones  v.  Arena  Pub.   Co.,  171  Mass.  22. 
Old  Colony  Trust  Co.   v.   Medfield  etc. 
Railway,  215  Mass.  156. 


1 A  wife's  personal  property  formerly  became  her  husband's  on 
marriage.  In  Heard  v.  Stanford,  a  woman  had  some  property, 
owed  a  debt,  married,  and  then  died  before  the  debt  was  paid.  The 
creditor  was  without  remedy,  as  at  law  the  husband  was  not  liable 
after  her  death  to  her  creditors,  although  he  was  during  coverture. 


42  EQUITY  AND   IT  REMEDIES 

But  where  fraud  or  mistake  is  the  foundation  of 
a  bill  to  reform  an  instrument  or  is  a  defence  to  a 
bill  specifically  to  enforce,  the  rule  against  the  vary- 
ing of  the  terms  of  a  written  instrument  by  parol 
evidence  is  of  necessity  abrogated. 

Stockbridge  Iron  Co.  v.  Hudson  Iron  Co., 
102  Mass.  45. 

Williams  v.  Carty,  205  Mass.  398. 

And  in  equity  a  conveyance  absolute  on  its  face 
may  be  shown  to  be  a  mortgage. 

Campbell  v.  Dearborn,  109  Mass.  130. 

II.  Where  there  is  a  clear  analogy  between  legal 
and  equitable  interests  and  estates,  though  not 
absolutely  bound  by  them,  equity  ordinarily  follows 
by  analogy  the  rules  of  the  law,  so  far  as  applicable 
to  the  corresponding  equitable  subject  matter. 

Thus,  words  used  in  creating  a  trust  will  be  given 
the  same  effect  as  if  used  in  creating  a  legal  estate. 

Ditrell  v.  Carlisle,  48  Miss.  691. 

And  the  statute  of  limitations  governing  actions 
on  analogous  legal  rights  will  be  applied  by  analogy 
to  suits  founded  on  equitable  rights,  at  least  to  the 
extent  of  not  being  exceeded  without  good  cause.3 

Dodge  v.  Essex  Ins.  Co.,  12  Gray  65. 

Church  v.  Winton,  196  Penn.  107. 

Shelton  v.  Sears,  187  Mass.  455  (claim  of 
dower  after  statutory  time). 

Eddy  v.  Fogg,  192  Mass.  543  (right  of 
partner  to  ask  for  accounting  lasts  only 
six  years  from  dissolution). 


8  See  the  subject  of  Laches,  under  the  Maxim  "Equity  Aids  the 
Vigilant." 


THE  MAXIMS  43 


But  where  the  case  is  one  of  concurrent  jurisdiction 
(as  account)  it  is  clear  that  equity  considers  statutes 
of  limitation  binding  suo  vigore. 

Ela  v.  Ela,  158  Mass.  54. 

The  period  of  limitation  in  fraud,  however,  fre- 
quently runs  from  the  knowledge  of  that  fraud. 

Manning  v.  Mulrey,  192  Mass.  547  (relief 
twenty-one  years  after  the  fraud). 

C.   Where   the   Equities   are   Equal,   the   Law 
Will  Prevail. 

If  two  parties  have  equal  equitable  rights  or  titles 
and  one  has  the  legal  title  in  addition,  equity  will 
not  interfere. 

Bridge  v.  Conn.  Mutual  Life  Ins.  Co.,  152 
Mass.  343. 

Mercantile  Marine  Ins.  Co.,  v.  Corcoran  1 
Gray  75. 

Elmore  v.  Symonds,  183  Mass.  321. 

Ellis  v.  Boston  H.  &  E.  R.  Co.,  107  Mass.  1. 

Wenz  v.  Pastene,  209  Mass.  359. 

See  cases  cited  in  Ames  Cases  on  Trusts, 
p.  328  (with  special  reference  to  successive 
assignments). 

Examples  (from  Merwin.) 

1.  A  gives  the  same  day  contracts  to  sell  the  same 
piece  of  real  estate  to  B  and  C,  each  of  whom  is 
ignorant  of  the  other's  possession  of  an  agreement. 
A  subsequently  conveys  to  C.  C's  title  will  prevail 
over  B's,  as  he  has  the  legal  and  equitable  title  as 
against  B's  equitable. 

2.  If  B  obtains  from  A,  by  fraud,  a  deed  to 
land,  and  immediately  conveys  to  C,  an  innocent 


44  EQUITY  AND  ITS  REMEDIES 

i 

purchaser  for  value,  C's  title  will  prevail  as  he  has 
the  legal  title.4 

But  as  a  donee  gets  only  such  estate  as  the  donor 
can  give,  his  legal  estate  will  be  subject  to  any  equit- 
able estate  or  interest  in  the  land,  possessed  by  another. 

Woodard  v.  Woodard,  216  Mass.  1. 

D.   Where    Interests    are    Purely    Equitable 

and  in  Other  Respects  Equal,  Priority  in  Time 

Gives  the  Better  Equity. 

If  two  persons  hold  successive  assignments  of 
the  same  chose  in  action  or  equitable  interest,  in 
the  absence  of  estoppel  the  earlier  in  time  prevails 
at  law  and  in  equity,  irrespective  of  which  one  first 
gives  notice  to  the  debtor  or  trustee.6 

Lucas  v.  Barrett,  1  Greene  (Iowa)  510. 

Thayer  v.  Daniels,  113  Mass.  129. 

Putnam  v.  Story,  132  Mass.  205. 

Herman  v.  Conn.  Mutual  Life  Ins.  Co. 
(estoppel  prevented  first  assignee  from 
prevailing)  218  Mass.  181. 

But  in  the  case  of  unequal  equities,  the  superior 
will  prevail  without  respect  to  time. 

Belknap  v.  Belknap,  5  Allen  468  (the  equities 
of  other  cestuis  are  superior  to  those  of 
the  assignee  of  the  equitable  interest  of 
a  cestui  who  is  also  the  absconding  trustee). 


4  But  contra,  if  deed  from  A  to  B  was  a  forgery,  in  which  case  it 
was  void,  not  merely  voidable. 

5  The  opposite  rule  exists  in  England,  where  the  one  prevails 
who  first  gives  notice.  Dearie  v.  Hafl,  3  Russell  48;  Ames  Cases  on 
Trusts,  323.  See  Mercantile  Marine  Ins.  Co.  v.  Corcoran,  1  Gray 
75,  an  early  Massachusetts  case  where  Dearie  v.  Hall  is  cited  with 
approval,  but  in  which  the  defendant  appears  to  have  obtained 
the  legal  title,  without  notice  of  the  plaintiff's  claim.  See  also 
Bridge  v.  Conn.  Mutual  Life  Ins.  Co.,  152  Mass.  343. 


THE   MAXIMS  45 


Peek  v.  Peek,  77  Cal.  106. 

E.  Equity  Treats  that  as  Done  which  Ought 

to  be  Done. 

Upon  this  maxim  rests  the  doctrine  of  equitable 
conversion  (treated  at  length  in  Chapter  V). 

It  also  supports  the  doctrine  of  equitable  liens, 
under  which  equity  enforces  in  the  manner  of  liens, 
agreements  that  certain  property  shall  be  chargeable 
for  certain  obligations. 

Westall  v.  Wood,  212  Mass.  540. 

F.  He    Who    Seeks    Equity    Must    Do    Equity. 

One  cannot  compel  in  equity  the  other  party  to 
a  contract  to  perform  his  part,  if  he  has  failed  to 
perform  his  own  obligations  or  to  tender  performance 
thereof  (although  no  tender  is  necessary  if  the  other 
has  refused  to  perform). 

McMurtrie  v.  Guiler,  183  Mass.  451. 

Washburn  v.  White,  197  Mass.  540. 

Wenz  v.  Pastene,  209  Mass.  359. 

Butterick  Pub.  Co.  v.  Fisher,  203  Mass.  122. 

Curtiss  v.  Sheffield,  213  Mass.  239  (under 
certain  conditions,  one  seeking  to  have 
tax  deed  declared  invalid  must  first  pay 
re-assessed  tax  on  property). 

A  mortgagor  who  seeks  to  redeem  must  pay,  in 
addition  to  the  mortgage  debt,  sums  for  which  he 
has  OFally  agreed  the  mortgage  shall  stand  as  security.6 

Joslyn  v.  Adams,  5  Allen  62. 


6  This  does  not  apply  to  the  holder  of  a  subsequent  interest,  with- 
out notice,  who  seeks  to  redeem  from  the  mortgage. 

Whitney  v.  Metallic  Wire  Screen  Mfg.  Co.,  187  Mass.  557. 
Brooks  v.  Brooks,  169  Mass.  38. 


46  EQUITY  AND  ITS   REMEDIES 

When  a  contract  is  rescinded,  the  plaintiff  is  required 
to  put  the  other  party  in  statu  quo. 

McSorley  v.  Larissa,  100  Mass.  270.  (Bill 
to  redeem.  One  who  had  bought  from 
the  mortgagee  in  possession  must  be 
compensated  for  improvement). 

Atkins  v.  Atkins,  195  Mass.  124  (in  setting 
aside  conveyance,  part  of  consideration 
paid  must  be  returned). 

The  adverse  equity  is  sometimes  raised  by  estoppel.7 

Brownell  v.  White,  87  Md.  54  (where  inno- 
cent occupants  are  allowed  to  pay  taxes 
and  make  improvements). 

Berry  v.  Friedman,  192  Mass.  131. 

Mass.  Rev.  Laws,  ch.179,  sec.  17-24  (com- 
pensation for  improvements  if  tenant 
in  writ  of  entry  has  had  possession  for 
six  years,  or  under  apparently  good  title). 

The  equity  required  is  only  as  to  the  subject  matter 
in  controversy. 

Brooks  v.  Brooks,  169  Mass.  38  (redemption 
from  a  mortgage  does  not  require  pay- 
ment of  subsequent  indebtedness). 

G.  He    Who    Comes    Into    Equity    Must    Come 
With  Clean  Hands.8 

Equity  refuses  its  aid9  to  one  guilty  of  unlawful  or 
inequitable  conduct  in  relation  to  the  subject  matter. 


7  The  doctrine  of  Estoppel  (see  Ch.  V)  is  based  on  this  maxim. 

8  This  maxim  differs  from  the  one  next  before  in  that  it  is  one  of 
inaction  rather  than  action.  It  is  similar  to  the  legal  maxim  "In 
pari  delicto,  potior  est  conditio  defendentis."  It  has  been  applied  in 
Massachusetts  in  a  divorce  case.  See  Ewald  v.  Ewald,  219  Mass. 
111. 

•  But  by  statute,  one  who  has  made  margin  purchases  of  stock 
may  seek  relief  in  equity.  Mass.  R.  L.,  ch.  99,  sees.  4-7;  Fiske  v. 
Doucette,  206  Mass.  275. 


THE   MAXIMS  47 


Loud  v.  Pendergast,  206  Mass.  122  (plaintiff 
violated  same  restrictions). 

Wheeler  v.  Sage,  1  Wall.  518  (Division  re- 
fused of  profits  in  illegal  contract  to  despoil 

third  person).10 

Lovejoy  v.  Bailey,  214  Mass.  134  (plaintiff 
without  clean  hands,  can't  claim  sub- 
rogation). 

Snell  v.  D wight,  120  Mass.  9. 

Otis  v.  Freeman,  199  Mass.  160  (no  aid  to 
establish  title  to  furniture  bought  by  man 
for  mistress). 

Stewart  v.  Finkelstone,  206  Mass.  28  (good 
discussion.     Restrictions). 

Snow  v.  Blount,  182  Mass.  489. 

Nelson  v.  Winchell  &  Co.,  203  Mass.  75 
(rule  in  trademark  cases). 

Dunham  v.  Presby,  120  Mass.  285. 

Downey  v.  Gove,  201  Mass.  251  (no  in- 
junction to  restrain  foreclosure  of  mort- 
gage given  for  illegal  liquor). 

Wilson  v.  Jackson,  204  Mass.  432. 

Equity  will  refuse,  on  the  application  of  a  guilty 
participant,  to  relieve  him  from  the  consequences 
of  his  misconduct,  where  his  claim  to  relief  is  neces- 
sarily based  on  his  misconduct. 

Lawton  v.  Estes,  167  Mass.  181  (where  one 
of  several  co-tenants  allows  another  to 
buy  for  taxes  fraudulently,  he  cannot 
afterwards  redeem). 

But  it  will  not  refuse,  if  the  relief  sought  is  not 
based  on  the  fraud. 

Schmidt  v.  Schmidt,  216  Mass.  572. 


10  Distinguish  this  from  Harvey  v.  Varney,  98  Mass.  118. 


48  EQUITY  AND  ITS   REMEDIES 

Lufkin  v.  Jakeman,  188  Mass.  588  (to 
obtain  reconveyance  of  property  con- 
veyed in  fraud  of  grantor's  creditors). 

One  is  not  in  pari  delicto  who  enters  into  a  champer- 
tous  contract  with  an  attorney,  relying  on  the  at- 
torney and  in  ignorance  of  the  illegality  of  the  contract. 

Gargano  v.  Pope,  184  Mass.  571. 

Relief  will  be  refused  where  one  is,  in  respect  to 
the  subject  matter,  seeking  to  deceive  the  public. 

Cal.  Fig  Syrup  Co.  v.  Steam,  73  Fed.  Rep. 

312   (by  the  use  of  a  misleading  trade 

name). 
Connell  v.  Reed,  128  Mass.  477. 
Geo.  G.  Fox  Co.  v.  Best  Co.,  209  Mass.  251 

(but  not  where  false  statements  used  in 

advertising    have    been    abandoned  two 

years  before). 

It  is  sometimes  said  that  as  "Equity  is  not  a 
Court  of  Honor"  the  maxim  means  only  that  one 
be  "legally  innocent"  and  "equitably  innocent"  and 
not  that  he  exhibit  the  highest  sense  of  honor. 

Dering  v.  Earl  Winchelsea,  1  Cox  318  (n)u 
(A  surety  who  had  encouraged  his  prin- 
cipal to  gamble  was  not  thereby  prevented 
from  obtaining  contribution  from  a  co- 
surety for  losses  paid  on  a  surety  bond). 

The  Massachusetts  rule  is  that  it  is  only  with 
regard  to  the  plaintiff's  right  against  the  defendant 
that  the  plaintiff  must  come  into  court  with  clean 
hands. 

Beekman  v.  Marsters,  195  Mass.  205  (and 
cases  there  cited). 


u     May  be  found  in  1  White  &  Tudor's  Leading  Cases. 


THE  MAXIMS  49 


Lurie  v.  Pinanski,  215  Mass.  229  (that  plain- 
tiff had  attempted  similar  fraud  on  de- 
fendant and  failed  is  immaterial). 

The  court  will  not  concern  itself  with  the  respective 
rights  of  two  defendants,  both  of  whom  are  wrong- 
doers. 

Johnson  v .  Scott,  205  Mass.  294. 

The  maxim  has  no  application  where  the  plaintiff's 
act  is  one  that  he  has  acquired  a  prescriptive  right 
to  do. 

Parker  v.  American  Woolen  Co.,  215  Mass. 
176. 

H.  Equity  Aids  the  Vigilant. 

Where  one  has  slept  on  his  rights  and  acquiesced 
for  a  long  time  in  existing  conditions,  he  is  said  to 
be  chargeable  with  laches12  and  equity  then  ordinarily 
refuses  its  aid.  This  is  sometimes  called  a  form  of 
estoppel. 

Andrews  v.  Spar  hawk,  13  Pick.  393. 

Marvel  v.  Cobb,  200  Mass.  293. 

Mercantile  Marine  Ins.  Co.  v.  Corcoran, 
1  Gray  75  (estoppel). 

In  certain  cases,  the  analogous  statute  of  limitation 
at  law  may  be  the  guide  in  determining  the  length 
of  time  required  to  constitute  laches. 

See  under  "Equity  Follows  the  Law,"  ante. 


12  "The  finding  of  laches  is  not  the  finding  of  a  simple  fact,  but 
it  is  an  inference  from  other  facts,  which  may  include  many  differ- 
ent elements.  *  *  *  There  is  no  fixed  rule  as  to  what  shall  consti- 
tute laches,  but  it  depends  on  the  particular  circumstances  of  each 
case.  *  *  *  Those  circumstances  may,  on  the  one  hand,  tend  to 
excuse  delay,  or,  on  the  other  hand,  go  to  show  that  prompt  action 
was  imperative."  C.  Allen,  J.,  in  Snow  v  Boston  Blank  Book  Mfg. 
Co.,  153  Mass.  456 


50  EQUITY  AND  ITS   REMEDIES 

But  in  other  cases,  the  staleness  of  the  demand 
may  make  the  relief  sought  so  highly  inequitable 
to  other  persons  as  to  induce  courts  of  equity  on  this 
ground  to  refuse  such  relief.  The  length  of  time 
required  to  constitute  laches  usually  depends  on 
the  facts  of  the  particular  case. 

Loud  v.  Pendergast,  206  Mass.  122  (short 
delay,  where  plaintiff  stood  by  and  allowed 
defendant  to  violate  restrictions,  held 
laches). 

Fuller  v.  Melrose,  1  Allen  166  (ten  months' 
delay  held  laches). 

Manning  v.  Mulrey,  192  Mass.  547  (twenty- 
one  years  held  not  laches). 

Marvel  v.  Cobb,  200  Mass.  293  (bill  to  set 
aside  foreclosure  for  fraud.  Sixteen  years 
delay  held  demurrable  laches). 

Von  Arnim  v.  American  Tube  Works,  188 
Mass.  515  (bill  of  minority  stockholders). 

In  some  cases,  however,  the  delay  may  be  so 
great  as  to  constitute  laches  as  a  matter  of  law. 

Sawyer  v.  Cook,  188  Mass.  163. 

Strout  v.  United  Shoe  Mach.  Co.,  215  Mass. 
116. 

Marvel  v.  Cobb,  200  Mass.  293. 

Stewart  v.  Joyce,  201  Mass.  307. 

Doane  v.  Preston,  183  Mass.  571. 

Where  facts  constituting  laches  appear  on  the  face 
of  the  bill,  a  demurrer  lies.  Where  the  defendant 
desires  to  present  his  defense  on  all  the  facts  of  the 
case,  he  may  set  it  up  in  his  answer,  in  some  cases 
even  after  his  demurrer  has  been  overruled.  The 
defendant  may  not  argue  laches  as  a  matter  of  right 
if  he  has  not  pleaded  it  in  some  form.     The  court 


THE   MAXIMS  51 


may,  however,  in  such  case  refuse  relief  as  inequit  able 
on  the  facts. 

Snow  v.  Boston  Blank  Book  Mfg.  Co.,  153 
Mass.  456. 

Stewart  v.  Joyce,  201  Mass.  307. 

To  constitute  laches  there  must  have  been  either 
actual  or  imputable  knowledge  of  the  facts  upon 
which  the  right  to  equitable  relief  depends. 

Manning  v.  Mulrey,  192  Mass.  547. 
Sunter  v.  Sunter,  190  Mass.  449. 

But  neither  an  infant  nor  an  insane  person  is  charge- 
able with  laches. 

Burns  v.  Thayer,  115  Mass.  89. 
Denholm  v.  McKay,  148  Mass.  434. 

A  suit  by  the  government  to  enforce  a  public  right 
is  not  barred  by  the  gross  laches  of  its  officers. 

U.  S.  v.  Insley,  130  U.  S.  263. 

County  Commissioners  of  Hampshire,  Peti- 
tioners, 143  Mass.  424. 

Where  a  deed  is  void  (rather  than  voidable) 
laches  constitutes  no  defence  to  a  bill  to  set  it  aside. 

Ipswich   v.    Prop'rs   Jeffries  Neck  etc.,  218 
Mass.  487. 


52  EQUITY  AND  ITS   REMEDIES 


CHAPTER  V. 
SOME  DOCTRINES   IN   EQUITY. 

A.  Assignments. 

B.  Notice. 

C.  Estoppel. 

1.  Estoppel  by  Record. 

2.  Estoppel  by  Deed. 

3.  Estoppel  in  Pais. 

a.  From  Contract. 

b.  Equitable  Estoppel. 

D.  Equitable  Conversion. 

A.  Assignments. 

At  the  early  common  law,  the  right  to  assign  a 
non-negotiable  chose  in  action  was  not  recognized. 

Pomeroy,  sees.  1270-1272. 

But  equity  at  an  early  date  recognized  such  assign- 
ments (when  on  a  valuable  consideration)  and  en- 
forced them;  and  the  common  law  has  for  some 
time  been  so  modified  as  to  recognize  the  right  of 
an  assignee  of  a  chose  in  action  to  sue  in  the  name 
of  the  assignor,  whether  the  assignment  is  in  writing 
or  not,1  and  whether  for  a  consideration  or  voluntary. 


1  The  term  equitable  assignment  applied  to  such  transfers  seems 
to  be  a  recognition  of  the  former  equitable  jurisdiction.  Its  later 
use  is  to  distinguish  the  title  of  the  assignee  from  that  of  the  assignor 
in  whose  name  alone,  in  the  absence  of  statute,  suits  at  law  could 
be  brought.  Grover  v.  Grover,  24  Pick.  261.  It  may  also  suggest 
the  right  of  the  assignee,  where  there  is  no  formal  assignment, 
to  compel  the  assignor  or  his  executor  to  make  such,  in  equity. 
Herbert  v.  Simpson,  220  Mass.  480. 


SOME  DOCTRINES  IN   EQUITY  53 

Grover  v.  Grover,  24  Pick.  261  (gift  of  a 
mortgage  and  note  without  indorsement; 
suit  in  name  of  assignor  against  latter's 
will). 

Norton  v.  Piscataqua,  etc.  Ins.  Co.,  Ill 
Mass.  532  (delivery  of  non-negotiable 
note). 

Hewins  v.  Baker,  161  Mass.  320*  (oral 
transfer,  as  collateral,  of  policy  which 
expressly  provided  against  assignment). 

Wolfboro  Loan  &  Banking  Co.  v.  Rollins, 
195  Mass.  323  (assignee  under  a  foreign 
statute). 

French  v.  Peters,  177  Mass.  568  (suit  brought 
in  equity  by  assignee  of  note  and  bank 
book  where  transfer  was  one  act,  without 
writing,  and  was  denied  by  maker  of 
note,  bank,  and  assignor's  administrator. 

The  transfer  of  title  is  usually  by  delivery  of 
some  paper  representing  the  chose  in  action  (as  a 
note,  or  insurance  policy),  or  by  deed.  A  good  gift 
may  thus  be  made,  passing  the  equitable  title  even 
without  indorsement  or  formal  assignment.  Whether 
an  oral  gift  of  incorporeal  personal  property  is  suffi- 
cient, there  seems  to  be  some  doubt. 

Grover  v.  Grover,  24  Pick.  261. 
Herbert  v~.  Simpson,  220  Mass .  480. 

Chadwick  v.  Co  veil,  151  Mass.  190  (dis- 
cussion by  Holmes,  J.). 

Herman  v.  Conn.  Mutual  Life  Ins.  Co., 
218  Mass.  181  (written  assignment  of 
insurance  policy  without  delivery  of  the 
policy  held  good  as  between  the  parties). 


2  This  was  a  bill  in  equity  of  one  claimant  against  another  for 
possession  of  the  policies  —  not  against  the  company  for  payment, 
in  which  case  it  might  have  been  at  law. 


54  EQUITY  AND   ITS   REMEDIES 

Jones  v.  Witter,  13  Mass.  304  {dictum  that 
parol  assignment  of  debt  is  good). 

Assignments,  at  law,3  today. 

In  many  states,  under  statutes,  an  assignee  of  a 
legal  chose  in  action4  (if  the  assignment  is  in  writing*) 
may  now  sue  at  law  in  his  own  name,  subject  (except 
in  the  case  of  negotiable  instruments)  to  all  defenses 
and  set-offs  which  the  defendant  might  have  had 
against  the  assignor. 

Mass.  Rev.  Laws,  ch.  173,  sec.  4  (first 
passed  in  1897). 

Gilman  v.  American  Prod.  Con.  Co.,  180 
Mass.  319. 

Bowen  v.  N.  Y.  C.  &  H.  R.  R.,  202  Mass. 
263  (assignment  must  be  before  date  of 
writ). 

To-day,  those  choses  in  action  are  assignable  at 
law  that  would  at  common  law  survive6  and  pass 
as  assets  to  the  personal  representative  of  a  decedent 
creditor  or  as  liabilities  against  the  estate  of  a  dece- 
dent debtor.     Most  others  are  not  assignable. 


8  The  adequacy  of  the  present-day  remedy  at  law  has  brought 
a  partial  loss  of  jurisdiction  in  equity.  Walker  v.  Brooks,  125  Mass. 
241.  Merwin  (in  Section  95)  seems  erroneously  to  assume  that 
equity  never  had  such  jurisdiction.  But  he  refers  to  the  "equitable 
title",  of  the  assignee,  which  is  inconsistent.  See  a  clearer  statement 
in  Pomeroy,  sees.  1271-1272.  See  French  r.  Peters,  177  Mass.  568, 
referred  to  supra. 

4  Foi  a  case  where  the  holder  of  the  equitable  title  to  a  pote  was 
allowed  to  sue  at  law,  see  Nelson  v.  Piper,  213  Mass.  531. 

5  The  Massachusetts  requirement.  If  not  in  writing,  suit  may 
still  be  in  name  of  assignor.  The  right  to  sue  in  assignee's  name, 
of  course,  depends  on  the  law  of  the  forum.  American  Lithographic 
Co.  v.  Zieglei,  216  Mass.  287. 

6  Certain  choses  in  action  survive  to-day  under  statutes  which 
at  common  law  did  not  (see,  for  example,  Mass.  Rev.  Laws,  ch.  171, 
sec.  1).    But  this  does  not  necessarily  make  them  assignable. 


SOME  DOCTRINES  IN  EQUITY  55 

Examples : 

A  patent  application  is  assignable. 

Richardson    Shoe    Mach.    Co.    v.    Essex 
Mach.  Co.,  207  Mass.  219. 

An  insurance  policy  is  assignable. 

Herman  v.  Conn.  Mutual  Life  Ins.  Co., 
218  Mass.  181. 

A  right  to  surrender  a  life  insurance  policy  is 
assignable. 

Blinn  v.   Dame,    207   Mass.    159    (under 
general  assignment). 

The  benefit  of  a  bond  to  release  attachment  is 
assignable. 

Rogers  v.  Abbot,  206  Mass.   270   (under 
assignment  of  bills  receivable). 

A  claim  against  a  bank  for  wrongfully  refusing 
to  honor  a  check  is  assignable. 

Robinson  v.  Wiley,  188  Mass.  533. 

A  claim  for  injuries  to  the  person  (such  as  bat- 
tery or  personal  injury  resulting  from  negli- 
gence) or  to  character,  reputation  or  feelings, 
(such  as  libel,  breach  of  promise  of  marriage, 
alienation  of  affections,  enticement,  false  im- 
prisonment, and  malicious  prosecution)  is 
not  assignable  in  Massachusetts  until  after 
judgment  (not  verdict). 

Rice    v.    Stone,    1    Allen    566    (personal 

injuries). 
Stebbins  v.  Palmer,  1  Pick.  71  (breach  of 

promise  of  marriage). 
Delval  v.  Gagnon,   213  Mass.  203   (rule 

stated). 
Flynn  v.  Butler,  189  Mass.  377. 
Sibley  v.  Nason,  196  Mass.  125. 


56  EQUITY  AND  ITS   REMEDIES 

A  mere  right  to  litigate  for  fraud  is  not  assignable.7 
United  Zinc  Companies  v.  Harwood,  216 
Mass.  474. 

A  contract  to  render  services  involving  personal 

skill  is  not  assignable  so  long  as  it  is  executory.8 

Pike  v.  Waltham,  168  Mass.  581  (contract 

to  build  a  bridge). 
But  see   Haskell   v.   Blair,   3   Cush.   534 
(assignment  of  benefit  of  contract  for 
services  of  laborer). 

A  right  of  entry  for  breach  of  a  condition  in  a 
deed  conveying  the  fee  is  not  assignable. 

Rice  v.  Boston  &  Worcester  R.  R.,   12 
Allen  141. 

A^chose  in  action,  to  be  assignable  at  law,  need 
not  be  a  present  right  of  action  but  may  be  the 
present  interest  in  a  contract  which  in  case  of  non- 
performance can  only  be  reduced  to  possession  by 
suit. 

Taylor  v.  Lynch,  5  Gray,  49  (assignment  of 
wages  under  existing  contract). 

Herbert  v.  Bronson,  125  Mass.  475  (assign- 
ment under  non-existing  contract,  invalid) 

Clarke  v.  Fay,  205  Mass.  228  (interest  under 
grandfather's  will,  to  come  to  assignor  if 
he  survives). 

Although  a  lease  contains  a  covenant  not  to  assign, 
an  administrator  of  the  lessee  may  bring  a  bill  to 
enforce  agreement  therein  to  renew. 

Squire  v.  Learned,  196  Mass.  134. 


7  But  see  Busiere  v.  Reilly,  189  Mass.  518,  in  which  right  to  sue 
to  rescind  real  estate  transaction  was  devised  by  will  and  the  devisee 
brought  suit. 

8  But  the  right  to  receive  money  under  such  a  contract  is  assign- 
able.   American  Lithographic  Co.  v.  Ziegler,  216  Mass.  287. 


SOME   DOCTRINES   IN  EQUITY  57 


Recognized  in  equity  only. 

Although  the  jurisdiction  at  law  is  now  ample  for 
the  enforcement  of  the  rights  of  the  assignee  of  a 
legal  chose  in  action,  the  aid  of  equity  may  be  invoked 
by  the  assignee  of  a  purely  equitable  demand. 

Kingsbury  v.  Burrill,  151  Mass.  199  (assign- 
ment of  share  in  an  expected  payment  of 
money  by  City  of  Boston). 

Richardson  v.  White,  167  Mass.  58  (assign- 
ment of  policy.     See,  as  to  delivery). 

Brierly  v.  Equitable  Aid  Union,9  170  Mass. 
218  (assignment  of  certificate  in  bene- 
ficiary association  to  secure  a  debt). 

Nelson  v.  Piper,  213  Mass.  531  (equitable 
holder  of  promissory  note). 

At  law  a  transfer  of  property  to  be  acquired  in 
the  future  is  void,  but  in  equity  such  a  transfer 
creates  an  equitable  ownership  at  such  time  as  the 
property  vests  in  the  assignor. 

Pomeroy,  sec.  1288. 

In  Massachusetts,  such  a  transfer  operates  as  an 
executory  agreement  to  transfer  the  property  when 
acquired  by  the  assignor.  If  that  property  is  tangible, 
possession  by  assignee  after  acquirement  by  assignor 
gives  legal  title;  if  intangible,  the  legal  title  may  be 
obtained  in  equity.  In  both  cases  it  is  subject  to 
intervening  adverse  rights  of  third  persons. 

Kingsbury  v.  Burrill,  supra  (intangible 
property). 

Blanchard  v.  Cooke,  144  Mass.  207  (con- 
taining a  review  of  the  law  of  mortgages 
on  after-acquired  personalty). 


9  This  case  was  brought  at  law.  But  the  defendant,  admitting 
liability  to  someone,  summoned  a  claimant,  and  the  matter  was 
determined,  as  in  interpleader,  equitably. 


58  EQUITY  AND   ITS   REMEDIES 


Wasserman  v.  McDonnell,  190  Mass.  326 
(mortgage  of  personalty). 

But  a  mere  possibility  of  income  from  an  expected 
exercise  of  discretionary  power  by  trustees  is  not 
assignable. 

Leverett  v.  Barnwell,  214  Mass.  105. 

Assignments  of  fractional  parts  of  claims  or  funds 
are  not  recogaized  at  law;  but  are  good  in  equity 
as  between  the  assignor  and  the  assignee  and  are 
enforceable,  at  least  when  the  person  to  pay  makes 
no  objection. 

James  v.  Newton,  142  Mass.  366  (formal 
assignment  of  part  interest  under  an 
uncompleted  contract). 

Richardson  v.  White,  167  Mass.  58  (assign- 
ments of  insurance). 

Endicott  v.  University  of  Virginia,  182 
Mass.  156  (assignment  of  part  of  bene- 
ficial interest  under  trust  fund,  held 
binding  on  trustee). 

But  equity  will  lend  no  assistance  towards  per- 
fecting a  voluntary  agreement  to  assign  a  chose  in 
action  absolutely  or  in  trust,  so  long  as  it  remains 
executory.  When  executed,  however,  equity  will 
protect  the  rights  of  the  parties. 

Stone  v.  Hackett,  12  Gray  227  (gift  of 
shares). 

In  equity  a  stranger  who  is  recognized  as  an  assignee 
of  a  chose  in  action  has  the  same  standing  as  the 
original  party  to  the  contract,  though  there  has  been 
no  formal  assignment. 

Record  v.  Littlefield,  218  Mass.  483  (wife 
brought  bill  on  agreement  running  to 
husband). 


SOME  DOCTRINES   IN   EQUITY  59 


Orders,  as  assignments. 

An  order  not  having  the  elements  of  a  formal 
assignment,  'drawn  by  one,  directing  another  to 
pay  a  third  person  the  whole  of  a  certain  fund  or 
claim,  due  or  belonging  to  the  first,  may  operate  as 
an  assignment,  taking  effect,  as  to  persons  other 
than  the  debtor,  when  delivered  (not  when  notice 
is  given  the  holder  of  the  fund).10 

Kingman  v.  Perkins,  105  Mass.  Ill  (savings 
bank  deposit). 

But  see  White  v.  Coleman,  127  Mass.  34 
(no  assignment  where  order  is  on  attorney 
to  pay  funds  when  received). 

An  order  to  pay  less  than  the  whole  amount  of 
the  fund,  however,  is  not  an  assignment  pro  tanto 
unless  it  is  accepted  by  the  person  on  whom  it  is 
drawn. 

Dana  v.  Third  National  Bank,  13  Allen  445 
(check). 

Holbrook  v.  Payne,  151  Mass.  383  (un- 
accepted draft). 

Florence  Mining  Co.  v.  Brown,  124  U.  S. 
385. 

Some  elements  of  the  assignee's  title. 

In  Massachusetts  (contra  in  England  and  some 
other  jurisdictions)  the  assignment  of  a  legal  chose 
in  action  is  complete,  so  far  as  persons  other  than 
the  debtor11  are  concerned,   upon  the  assent  of  the 


10  Of  course,  the  debtor  is  protected,  if,  without  knowledge  of 
assignment,  he  pays  original  creditor. 

11  As  between  assignee  and  debtor  it  is  not  operative  until  notice 
and  does  not  change  rights  of  the  debtor  against  the  assignor  exist- 
ing at  the  time  of  notice.  American  Bridge  Co.  v.  Boston,  202  Mass. 
374. 


60  EQUITY  AND   ITS   REMEDIES 

assignor  and  the  assignee.  It  follows  that  of  several 
successive  assignees,  the  first  in  point  of  time  (not 
the  one  first  notifying  the  debtor)  has  the  superior 
claim  as  to  third  persons,  unless  he  is  estopped  to 
set  it  up,  and  that  an  assignment,  though  the  debtor 
has  not  been  notified,  defeats  subsequent  trustee 
process  served  on  the  assignor. 

Herman  v.  Conn.  Mutual  Life  Ins.  Co.  218 
Mass.  181  (Rule  stated,12  though  first  as- 
signee was  here  estopped  as  against  second 
assignee). 

Thayer  v.  Daniels,  113  Mass.  129. 

City  Bank  of  New  Haven  v.  Wilson,  193 
Mass.  164  (payment  of  notes  to  assignor 
does  not  discharge  the  debtor). 

Dearie  v.  Hall,  3  Russell  1;  Ames  Cases  on 
Trusts  323  (The  English  Rule). 

An  assignee  of  a  chose  in  action  takes  it  subject 
to  all  equities  between  the  parties  thereto  and  ac- 
quires no  greater  rights  than  the  assignor.13 

Newell  v.  Hadley,  206  Mass.  335. 

Pomeroy,  sees.  703-706. 

The  liability  of  a  lessee  results  from  privity  of 
contract  and  extends  through  the  term;  that  of  his 
assignee  from  privity  of  estate  and  terminates  when 
he  assigns,  even  though  lessor  has  no  notice. 

Donaldson  v.  Strong,  195  Mass.  429. 


12  This  was  an  assignment  of  a  life  insurance  policy.  It  was 
decided  that  it  was  immaterial  as  between  assignor  and  assignee 
that  the  policy  made  ceitain  requirements  for  the  validity  of 
assignments,  not  complied  with  here. 

18  This,  of  course,  does  not  apply  to  negotiable  paper,  or  (in  Mass- 
achusetts) to  mortgages,  until  they  are  overdue.  Taylor  v.  Page, 
6  Allen  86.  McKeown  v.  Lacey,  200  Mass.  437,  (in  which  assignee, 
without  consideration,  got  a  better  title  to  note  than  assignor). 
Contra  in  some  other  states  as  to  mortgages. 


SOME   DOCTRINES  IN   EQUITY  61 


An  assignment  may  be  valid  although  under  a 
fictitious  name. 

W.  Galligan  Co.  v.  Casey,  205  Mass.  26. 

B.   Notice. 

One  who  acquires  an  interest  in  property  with 
notice  (either  actual  or  constructive)  of  the  existence 
in  a  third  person  of  a  right  enforceable  in  equity, 
affecting  the  subject  matter,  takes  his  title  subject 
to  that  right.14 

Parker  v.  Nightingale,  6  Allen  341. 

Tulk  v.  Moxhay,  11  Beavan  571;  Ames,  147. 

itelley-Buckley  Co.  v.  Cohen,  195  Mass. 
585. 

Bisbee  v.  McKay,  215  Mass.  21  (notice  to 
one  trustee,  is  notice  to  all  where  they  are 
volunteers). 

Conversely,  one  who  acquires  a  legal  interest  in 
property  as  a  bona  fide  purchaser  for  value,  without 
actual  or  constructive  notice  of  the  existence  of  a 
prior  equitable  claim,  is  not  ordinarily  interfered  with 
by  a  court  of  equity. 

Pomeroy,  sees.  737-746. 

In  America,  under  recording  acts,  it  is  also  true 
that  a  grantee  gets  a  good  legal  title  to  an  interest 
in  real  estate  if  he  acquires  it  without  actual  or  con- 
structive notice15  of  a  prior  deed  by  which  his  grantor 


14  Under  the  Massachusetts  Land  Court  Act,  however,  a  certificate 
of  title  setting  forth  ownership  and  incumbrances  is  conclusive  evi- 
dence of  matters  therein  contained.  Quaere;  Does  actual  notice 
have  any  effect  ?    Mass.  Rev.  Laws,  ch.  128,  sec.  46. 

15  The  effect  is,  of  course,  to  make  the  recording  of  deeds  the  means 
of  asseiting  and  preserving  one's  title  against  such  persons  as  do 
not  have  actual  notice  of  it. 


62  EQUITY  AND   ITS   REMEDIES 

has  conveyed  that  interest  to  another.     The  former 
grantee  is  then  estopped  to  claim  against  him. 

See  Mass.  Rev.  Laws,  ch.  127,  sec.  4. 

But  this  principle  does  not  apply  to  purchasers  of 
personalty. 

Bisbee  v.  McKay,  215  Mass.  21  (purchaser 
of  shares  in  a  realty  trust). 

Actual  Notice  (in  England  and  Massachusetts),16 
while  it  imports  less  than  the  positive  knowledge 
that  would  come  from  having  been  an  eye-witness 
to  certain  facts,  is  such  notice  as  convinces  its  recipient 
of  the  truth  of  the  facts  in  question.  It  is  more 
than  mere  rumor  of  facts  that  would  reasonably 
put  a  purchaser  on  inquiry. 

Evans  v.  Wall,  162  Mass.  478  (rule  stated). 

Lamb  v.  Pierce,  113  Mass.  72  (actual  notice 
of  unrecorded  deed,  under  recording  stat- 
utes). 

Curtis  v.  Mundy,  3  Met.  405.17 

George  v.  Kent,  7  Allen  16  (description  in 
deed  gives  actual  notice  of  abutting 
owners). 

Hughes  v.  Williams,  218  Mass.  448  (knowl- 
edge of  attaching  creditor  that  debtor 
has  given  an  unrecorded  deed). 

Constructive  Notice  is  the  legal  presumption  that 
one   has  notice.     This   presumption   may   arise    (1) 


16  In  some  other  juiisdictions  actual  knowledge  is  said  to  include 
"knowledge  of  such  facts  as  would  put  a  prudent  man  on  inquiry." 
Brinkman  v.  Jones,  44  Wise.  498;  Kirsch  v.  Toziei,  143  N.  Y.  390. 

17  "Information  of  the  giving  of  a  deed,  brought  home  to  a  paity 
with  as  much  authority  as  the  fact  of  the  marriage  or  death  of  a 
friend  in  the  newspaper"  was  held  to  be  actual  notice. 


SOME  DOCTRINES  IN   EQUITY  63 


from  evidence  so  strong  as  not  safely  to  be  ignored; 
(2)  by  virtue  of  statutes,  such  as  the  recording  acts 
of  the  several  states. 

Story's  Equity,  sec.  399. 

Colby  v.  Shute,  219  Mass.  213  (notice  from 
publication  in  insolvency  proceedings). 

Notice  presumed  from  evidence.  Open  possession 
of  land  is  constructive  notice18  that  the  possessor 
claims  some  kind  of  interest.  But  as  (in  Massachu- 
setts) actual  notice  is  required  to  charge  one  with 
knowledge  of  legal  interests  greater  than  that  of 
a  lessee  for  less  than  seven  years,  possession  is  only 
notice  that  the  possessor  may  have  such  an  interest 
as  tenant. 

Cunningham  v.  Pattee,  99  Mass.  248  (ten- 
ant).19 

Under  recording  acts.  Recording  deeds,  under 
American  statutes,  gives  constructive  notice  of  their 
contents  to  subsequent  purchasers. 

Bates  v.  Norcross,  14  Pick.  224  (but  no 
notice  to  lawful  owner,  from  deed  of  one 
with  no  title). 

To  effect  constructive  notice  in  this  form,  how- 
ever, all  statutory  pre-requisites  must  be  complied 
with. 

Blood  v.  Blood,  23  Pick.  80  (unacknowledged 
deed  not  notice,  though  recorded). 

One  is  put  upon  his  inquiry  to  learn  the  truth  of 


18  It  falls  short,  however,  of  the  actual  notice  required  in  the  case 
of  unrecorded  deeds.    Mara  v.  Pierce,  9  Gray  306. 

19  The  constructive  notice  rule  is  here  stated  to  be  that  "notice 
sufficient  to  make  inquiry  a  duty  is  notice  of  all  that  by  reason- 
able inquiry  would  have  been  ascertained." 


64  EQUITY  AND  ITS   REMEDIES 

recitals  in  deeds  to  him  or  in  deeds  in  his  chain  of 
title. 

Smith  v.  Burgess,  133  Mass.  511  (assignee 
of  mortgage  has  constructive  notice  from 
word  "trustee"  in  mortgage). 

In  order  to  be  affected  by  a  prior  unrecorded 
deed  from  one's  grantor  to  a  third  person,  one  must 
have  actual  notice  of  that  deed,  in  Massachusetts 
and  some  other  jurisdictions. 

Mass.  Rev.  Laws,  ch.  127,  sec.  4  (and  cases 
under  "Actual  Notice"  supra). 

Hughes  v.  Williams,  218  Mass.  448  (actual 
notice  to  attaching  creditor,  of  outstand- 
ing deed,  discussed). 

One  who  acquires  notice  of  an  unrecorded  instru- 
ment between  making  his  first  payment  for  property 
and  obtaining  his  deed,  takes  with  notice. 

Wentz  v.  Pastene,  209  Mass.  359  (unrecorded 
lease  for  more  than  seven  years). 

Lis  pendens  is  usually  referred  to  the  equitable 
doctrine  of  notice.  This  charges  with  notice  one 
who,  pending  a  suit  to  reach  certain  property,  acquires 
an  interest  therein,  though  he  pays  a  valuable  con- 
sideration and  has  no  actual  notice.  The  matter 
is  now  usually  governed  by  statutes,  requiring  either 
actual  notice  or  (as  a  means  of  affording  constructive 
notice)  the  filing  of  a  memorandum  of  the  pending 
suit  in  the  registry  of  deeds  where  instruments 
affecting  the  land  should  be  recorded. 

Mass.  Rev.  Laws,  ch.  134,  sec.  12. 

C.   Estoppel. 

Estoppel  is  the  preclusion  of  a  person  to  contra- 
dict in  court  that  which  has  been  admitted  or  deter- 


SOME  DOCTRINES   IN  EQUITY  65 

mined  to  be  a  fact  under  circumstances  of  solemnity 
(as  by  a  record  or  by  a  deed),  or  to  contradict  a  repre- 
sentation of  fact  which  he  has  induced  another  to 
believe  to  be  true  and  to  act  upon  to  his  prejudice 
(estoppel  in  pais). 

Legal  estoppel  is  the  designation  given  to  — 

1.  Estoppel  by  Record; 

2.  Estoppel  by  Deed; 

3.  Certain  Estoppels  in  Pais. 

1.  Estoppel  by  Record. 

A  record  of  a  court  of  law  having  jurisdiction" 
of  the  parties  to  the  controversy  imports  verity  so 
that  it  is  an  effectual  bar  to  further  dispute  on  the 
identical  subject  matter  by  the  parties21  to  it  or  by 
their  privies.  This  conclusiveness  is  referred  to  as 
res  judicata.  It  follows  only  upon  the  judgment  or 
decree.     A  verdict  or  finding  is  insufficient. 

Bigelow  on  Estoppel,  Chapter  II. 

Old  Dominion  Copper  Co.  v.  Bigelow,  203 
Mass.  159,  at  page  217. 

Saco  Brick  Co.  v.  J.  P.  Eustis  Mfg.  Co., 
207  Mass.  312. 

Haskell  v.  Cunningham,  221  Mass.  49  (clerk 
of  courts  may  not  testify  in  contradiction 
of  his  records). 

A    judgment    is    conclusive    by    way   of   estoppel 


20  A  judgment  rendered  upon  constructive  service  may  be  a  good 
judgment  in  personam  in  that  state,  though  void  when  sued  on 
outside  the  state.  Pennoyer  v.  Neff,  95  U.  S.  714;  Bigelow  v.  Old 
Dominion  Cop.  Co.,  225  U.  S.  111. 

21  There  is  no  estoppel  against  a  suit  between  the  same  persons, 
one  of  whom  sues  or  is  sued  in  a  different  capacity.  McCarthy  v. 
Wood  Lumber  Co.,  219  Mass.  566. 


66  EQUITY  AND   ITS   REMEDIES 

only  as  to  those  facts  which  were  necessarily  included 
in  it  and  without  the  existence  and  proof  of  which 
such  a  verdict  and  judgment  could  not  have  been 
rendered.22 

Flynn  v.  Howard,  218  Mass.  245  (final 
decree  in  equity  may  be  bar  to  suit  at 
law). 

Fairbanks  v.  McDonald,  219  Mass.  291 
(damages  for  "loss  already  sustained," 
no  bar  to  injunction  against  future  dam- 
age). 

Lima  v.  Campbell,  219  Mass.  253. 

Burlen  v.  Shannan,  99  Mass.  200. 

Inst,  for  Savings,  etc.  v.  Puffer,  201  Mass. 
41. 

Therefore,  there  can  be  no  estoppel  arising  out  of 
a  judgment23  unless  the  same  parties,  or  their  prede- 
cessors in  title,  have  had  their  day  in  court  touching 
the  matter  litigated,  and  unless  the  judgment  is 
equally  available  to  both  parties. 

Bigelow  v.  Old  Dominion  Copper  Co., 
225  U.  S.  111. 

Mere  recovery  of  judgment  is  no  bar  to  another 
action  against  a  different  party  (as  a  joint  tort  feaser) 
or  to  an  action  against  the  same  person  if  he  has 
given  different  obligations  in  respect  of  what  is  in 
substance  the  same  debt. 

Vann  v.  Burr,  151  Mass.  386. 
Frost  v.  Thompson,  219  Mass.  360. 


22  The  dismissal  of  a  bill  for  want  of  prosecution  is  therefore  no 
bar  to  a  further  suit.  Conant  v.  Boston  Chamber  of  Commerce, 
201  Mass.  479. 

23  But  in  the  case  of  a  judgment  in  rem,  the  whole  world  is  estopped. 
McCarthy  v.  Wood  Lumber  Co.,  219  Mass.  566. 


SOME  DOCTRINES   IN  EQUITY  67 


Bigelow  v.  Old  Dominion  Copper  Co.,  225 
U.  S.  111. 

Judgment  for  the  defendants  in  a  suit  on  a  note 
against  three  partners  raises  an  estoppel  to  sue  any 
one  of  them  on  the  note. 

Rogers  v.  Shea,  219  Mass.  416. 

But  a  judgment  against  defendant  trustees  in 
a  suit  at  law  does  not  estop  the  plaintiff  from  pro- 
ceeding also  in  equity  against  the  trust  estate. 

Frost  v.  Thompson,  219  Mass.  360. 

Nor  is  one  estopped  from  setting  up  the  truth 
by  reason  of  having  taken  an  inconsistent  position 
in  earlier  litigation  in  which  he  was  defeated. 

Jennings  v.  Wall,  217  Mass.  278. 

Athol  Sav.  Bank  v.  Bennett,  203  Mass.  480. 

But  see  Gardner  v.  Denison,  217  Mass. 
492  (father  suing  as  next  friend  cannot 
later  sue  in  his  own  name). 

A  judgment  is  an  absolute  merger  of  a  debt  by 
simple  contract,  so  that  the  judgment  creditor  is 
thereafter  estopped  to  maintain  another  suit  on  the 
original  promise.  But  this  doctrine  operates  only 
between  original  parties  and  their  privies,  and  is  not 
a  bar  in  favor  of  strangers. 

Frost  v.  Thompson,  219  Mass.  360  (and 
cases  cited). 

2.  Estop-pel  by  Deed. 

An  estoppel  by  deed  is  a  preclusion  of  the  com- 
petent parties  to  a  valid  sealed  contract,  and  their 
privies,  to  deny  its  force  and  effect  by  any  evidence 
of  inferior  solemnity. 


68  EQUITY  AND   ITS  REMEDIES 

Bigelow  on  Estoppel,  ch.  VII. 
Watson  v.  Watson,  128  Mass.  152. 
Dooley  v.  Wolcott,  4  Allen  406. 

A  void  instrument  does  not  work  estoppel. 

Mason  v.  Mason,  140  Mass.  63  (conveyance 
of  dower  by  a  wife  in  husband's  lifetime). 

N.  Y.,  N.  H.  &  H.  R.  R.  v.  York  &  Whitney 
Co.,  215  Mass.  36  (contract  invalid  under 
interstate  commerce  laws). 

Deans  v.  Eldredge,  217  Mass.  583  (void 
deed). 

The  estoppel  may  be  against  denying  recitals  or 
covenants  therein. 

Cutler  v.  Dickinson,  8  Pick.  386  (recital  in 
probate  bond  that  principal  was  appointed 
estops  surety  from  denial). 

Johnson  v.  Thompson,  129  Mass.  398  (recital 
in  deed  that  property  subject  to  mort- 
gage.    Grantee  estopped). 

Federal  Trust  Co.  v.  Bristol  Co.  St.  R'way, 
218  Mass.  63. 

But  an  estoppel  may  be  a  bar  to  another  estoppel. 
Piatt  v.  Squire,  12  Met.  494. 

Title  by  estoppel  arises  where  a  grantor  without 
title  gives  a  deed  with  warranty24  and  subsequently 
acquires  the  ownership  of  the  property  named  therein. 
This  inures  to  the  benefit  of  the  grantee. 

Somes  v.  Skinner,  3  Pick.  52. 


u  As  to  estoppel  by  quitclaim  deed,  see  Mass.  Land  Court  Decisions 
9,  and  cases  therein  cited,  and  Howe  v.  Howe,  199  Mass.  598. 


SOME  DOCTRINES   IN  EQUITY  69 

White  v.  Patten,  24  Pick.  324. 

Cressey  v.  Cressey,  215  Mass.  65  (estoppel 
from  sheriff's  deed  of  property  of  which 
debtor  owned  undivided  share,  provided 
that  portion  is  subsequently  set  off  to 
him). 

But  there  is  no  title  by  estoppel  where  one  who 
has  conveyed  by  metes  and  bounds,  with  one  measure- 
ment short,  subsequently  acquires  the  adjoining 
property. 

Van  Ness  v.  Boiney,  214  Mass.  340. 

Nor  is  there  any  estoppel  from  the  covenants  of 
a  void  deed. 

Deans  v.  Eldredge,  217  Mass.  583. 

Release  of  dower  by  a  woman  during  coverture 
also  operates  by  way  of  estoppel,  as  dower  itself 
arises  only  after  the  husband's  death. 

Stearns  v.  Swift,  8  Pick.  532. 

Wing  v.  Deans,  214  Mass.  546  (liability  of 
feme  covert  on  her  covenants  was  for- 
merly only  by  way  of  estoppel)." 

3.  Estoppel  in  Pais26  — 
This  may  be : 

a.  From  contract;  or 

b.  Equitable  estoppel. 


25  But  to  be  estopped,  she  must  have  joined  in  the  operative  words. 
One  who  erroneously  joined  in  a  deed  simply  releasing  dower  was 
not  estopped  to  claim  the  property  as  her  own.  Pierce  v.  Chace, 
108  Mass.  254.  But  see  Snow  v.  Hutchins,  160  Mass.  Ill,  where 
a  woman  who  thus  signed  was  estopped  by  other  facts. 

26  See  foot-note  to  Stowe  v.  United  States,  19  Wall.  13. 


70  EQUITY  AND  ITS   REMEDIES 

a.  Estoppel  by  Contract  arises  where  some  fact  at 
the  basis  of  the  contract  is  treated  by  it  as  specific- 
ally settled  (as,  for  example,  the  capacity  in  which 
one  party  assumes  to  act).  In  this  class,  also,  is 
the  estoppel  from  indorsement  on  commercial  paper, 
or  in  the  form  of  a  preclusion  of  a  lessee  to  deny  land- 
lord's title. 

Granger  v.  Parker,   137  Mass.  228  (lease). 

Dooley  v.  Cheshire  Glass  Co.,  15  Gray  494 
(corporation  estopped  to  deny  validity 
of  its  incorporation). 

Daniels  v.  Tearney,  102  U.  S.  415  (one  act- 
ing under  unconstitutional  law  may  not 
set  up  its  unconstitutionality). 

b.  Equitable  Estoppel  (or  Estoppel  by  Misrepre- 
sentation).27 

Where  one  by  his  words  or  conduct  wilfully  (or 
negligently)  causes  another  to  believe  the  existence 
of  a  certain  state  of  things  and  induces  (or,  under 
same  circumstances,  knowingly  allows)  him  to  act  on 
the  belief  so  as  to  alter  his  previous  position,  the 
former  is  precluded  from  averring  against  the  latter 
a  different  state  of  things  as  existing  at  the  same 
time. 

Bigelow  on  Estoppel,  page  557  (5th  edition). 

Jennings  v.  Wall,  217  Mass.  278. 

Gray  v.  Bartlett,  20  Pick.  186. 

Stimson  v.  Whitney,  130  Mass.  591  (estoppel 
to  deny  partnership,  arising  from  failure 
to  indicate  termination  of  relationship). 

N.  E.  Structural  Co.  v.  Everett  Distilling 
Co.,  189  Mass.  145  (estoppel  by  plan). 


87  This  doctrine  is  only  to  be  applied  "when  to  refuse  it  would 
be  manifestly  inequitable."  Deans  v.  Eldredge,  217  Mass.  583  (no 
estoppel  from  covenants  of  void  deed). 


SOME  DOCTRINES  IN  EQUITY  71 

Downey  v.  Hood,  203  Mass.  4  (estoppel  by 
plan). 

Lilley  v.  Fifty  Associates,  101  Mass.  432 
(estoppel,  from  dealings,  to  claim  pay- 
ment of  rent  in  "Russia  Old  Sables  Iron"). 

Richards  v.  Keyes,  195  Mass.  184  (cestui 
estopped  to  complain  of  trustee's  act  he 
has  requested). 

In  order  to  constitute  such  estoppel,  it  must  appear 
that  the  facts  were  known  to  the  party  against  whom 
the  estoppel  is  urged,  that  his  acts  or  representations 
were  intended  to  be  acted  upon  by  the  party  later 
urging  the  estoppel,  and  that  they  were  so  acted  upon 
by  him  in  ignorance  of  the  truth,  to  his  prejudice.28 

Newton  Centre  Trust  Co.  v.  Stuart,29  201 
Mass.  288  (as  to  intent  that  representa- 
tion be  acted  on). 

Stiff  v.  Ashton,  155  Mass.  130  (one  stating  to 
an  officer  that  goods  belonged  to  another 
was  not  estopped  to  deny  his  own  title, 
unless  he  had  reason  to  suppose  the  state- 
ment might  induce  the  officer  to  attach). 

Tyler  v.  Odd  Fellows',  etc.,  145  Mass.  134 
(as  to  estoppel  by  "receipt  in  full"). 

Plymouth  v.  Wareham,  126  Mass.  475  (no 
estoppel  without  real  damage). 

Westlake  v.  Dunn,  184  Mass.  260  (no  estop- 


^'The  earlier  Massachusetts  cases  spoke  of  the  necessity  of  "intent 
to  deceive";  the  later  cases  say  that  this  intent  may  be  inferred 
from  the  fact  that  one  who  knows  or  has  reason  to  know  the  truth 
has  spoken  falsely. 

29  This  case  should  be  carefully  distinguished  from  Central  Nat'l 
Bank  v.  Copp,  184  Mass.  328. 


72  EQUITY  AND  ITS   REMEDIES 

pel  where  deed  fraudulently  delivered  by- 
agent).?0 

Lincoln  v.  Gay,  164  Mass.  537  (no  estoppel 
to  recover  damages  from  dressmaker  who, 
without  being  ordered  by  plaintiff,  made 
up  dress  goods  wrong  side  out). 

Hinchley  v.  Greaney,  118  Mass.  595  (one 
asserting  property  unincumbered,  es- 
topped to  assert  mechanic's  lien). 

Bernard  v.  Adams  Express  Co.,  205  Mass. 
254  (one  asserting  value  of  express  parcel 
estopped,  after  loss,  to  claim  more,  not- 
withstanding Interstate  Commerce  Law). 

A  negligent  failure  to  tell  the  truth  may  constitute 
such  a  representation  as  to  estop  one  to  assert  a  title 
adverse  to  one  who  has  been  induced  by  the  repre- 
sentation to  acquire  an  interest  in  the  property. 

Tracy  v.  Lincoln,  145  Mass.  357  (wife  pre- 
sent when  husband  mortgaged  her  prop- 
erty as  his  own  estopped  to  claim  title 
against  mortgagee). 

Nickerson  v.  Mass.  Title  Ins.  Co.,  178  Mass. 
308  (an  attorney  employed  to  examine  a 
title  failed  to  report  a  mortgage  held  by 
the  attorney). 

Snow  v.  Hutchins,  160  Mass.  Ill  (woman 
who  signed  to  release  dower  in  land  owned 
by  herself,  title  of  which  husband  was 
warranting  in  deed,  estopped  to  claim 
land). 

Smyth  v.  Sprague,  149  Mass.  310  (holder  of 
unrecorded  deed  estopped  to  claim  prop- 
erty as  against  creditor,  but  not  as  against 


80  Compare  Phelps  v.  Sullivan,  140  Mass.  36  (where  mortgagee 
was  estopped  to  deny  assignment  by  agent). 


SOME   DOCTRINES  IN  EQUITY  73 

assignee  in  insolvency31 

Cutter  v.  Cutter,  215  Mass.  94  (party  to 
partition  proceeding  making  no  claim  to 
barn  estopped  to  deny  that  barn  is 
part  of  realty,  after  assenting  to  decree). 

But  in  a  case  where  one's  act  has  not  induced  or 
may  not  reasonably  be  expected  to  induce  the  per- 
son later  seeking  to  set  up  the  estoppel,  to  act  to 
his  detriment,  the  act  (whether  of  speech  or  silence) 
may  be  no  such  breach  of  duty  as  will  give  rise  to 
estoppel. 

Newton  Centre  Trust  Co.  v.  Stuart,  201 
Mass.  288. 

Lincoln  v.  Gay,  164  Mass.  537. 

Huntress  v.  Hanley,  195  Mass.  236  (no  duty 
on  owner  of  property  to  assert  title  at 
once  upon  hearing  that  another  has  mort- 
gaged it  as  his). 

Goodenough  v.  Labrie,  206  Mass.  599  (agree- 
ment to  assume  and  pay  mortgage). 

Cole  v.  N.  E.  Trust  Co.,  200  Mass.  594. 

So  a  promise,  without  consideration,  to  pay  an 
account  for  services  made  after  the  account  is  con- 
tracted, although  admissible  as  evidence,  does  not 
estop  one  from  denying  liability  or  contesting  the 
amount  of  the  claim. 

Conant  v.  Evans,  202  Mass.  34  (a  doctor's 
bill.  Defendant  had  written  letters  prom- 
ising to  pay). 


31  Our  statutes  requiring  deeds  to  be  recorded  result  in  the  estoppel 
of  the  holder  of  an  unrecorded  deed  as  against  one  who  subse- 
quently takes  title  without  actual  notice. 


74  EQUITY  AND  ITS   REMEDIES 

Entrusting  another  with  possession  of  chattels  is 
not  holding  him  out  as  owner  and  creates  no  estoppel 
if  he  undertakes  to  sell. 

Rogers  v.  Dutton,  182  Mass.  187. 

Kershaw  v.  Merritt,  194  Mass.  113  (husband 
and  wife). 

But  entrusting  another  with  the  tangible  evidence 
of  a  chose  in  action  may  lead  to  estoppel  to  claim 
from  one  who  acquires  from  him. 

Herman  v.  Conn.  Mutual  Life  Ins.  Co.,  218 
Mass.   181   (insurance  policy). 

Russell  v.  Am.  Bell  Tel.  Co.,  180  Mass.  467 
(stock  certificate). 

Title  by  estoppel  once  thus  acquired  may  pass  by 
conveyance  to  anyone,  whether  with  or  without 
knowledge. 

Nickerson  v.  Mass.  Title  Ins.  Co.,  178  Mass. 
308. 

Equitable  estoppel  is  usually  recognized  at  law  and 
resort  to  equity  is  ordinarily  unnecessary. 

Dickerson  v.  Colgrove,  100  U.  S.  578  (rule 
stated). 

Drexel  v.  Berney,  122  U.  S.  241. 

Election  of  Remedies. 

When  a  party  has  two  alternative  and  inconsistent 
rights,  he  may  be  estopped  by  his  election  between 
them,  provided  he  makes  it  deliberately  and  unin- 
fluenced by  accident  or  mistake. 

Stevens  v.  Pierce,  151  Mass.  207. 
Holman  v.  Updike,  208  Mass.  466. 


SOME   DOCTRINES   IN  EQUITY  75 

Debbins  v.  Foster,  219  Mass.  370  (election 
to  hold  as  mortgagee  in  possession). 

There  is  no  election,  however,  where  the  choice 
is  not  made  deliberately,  or  is  the  result  of  accident 
or  mistake  as  to  the  facts. 

Snow  v.  Alley,  156  Mass.  193. 
Moore  v.  Sanford,  151  Mass.  285. 
Peters  v.  Ballestier,  3  Pick.  495. 

Where  one  brings  in  the  same  jurisdiction  two 
suits  for  the  same  cause  of  action,  an  election  of 
remedies  may  be  required  before  trial.32 

Sanford  v.  Soule  Piano  &  Organ  Inv.  Co., 
164  Mass.  85  (suit  at  law;  then  one  to 
reach  and  apply  in  equity.  Held  bill 
should  be  dismissed  unless  lawsuit  is 
discontinued). 

But  the  rule  of  election  does  not  necessarily  pre- 
vent the  simultaneous  employment  of  different  reme- 
dies not  mutually  repugnant,  looking  towards  the 
satisfaction  of  a  single  claim. 

Connihan  v.  Thompson,  111  Mass.  270. 
Corbett  v.  B.  &  M.  R.  R.,  219  Mass.  351. 

(action  under  state  and  federal  employers' 
liability  acts,  tried  together). 
Frost  v.  Thompson,  219  Mass.  360  (judgment 
against  trustees  at  law  is  not  an  election 
so  as  to  prevent  recovery  in  equity  against 
the  trust  estate). 

Waiver. 
Some    forms    of    estoppel    are    more     famil- 


32  See  Turnquist  v.  Hannon,  219  Mass.  560  for  discussion  of 
election  by  beginning  proceedings  under  Workingmen's  Compen- 
sation law. 


76  EQUITY  AND   ITS   REMEDIES 


iarly  known  as  waiver,  and  commonly  arise  in  con- 
tracts of  insurance. 

N.  Y.  Life  Ins.  Co.  v.  Eggleston,  96  U.  S.  572. 

Little  v.  Phoenix  Ins.  Co.,  123  Mass.  380 
(waiver  of  preliminary  statement). 

Eliot  Five  Cents  Savings  Bank  v.  Commercial 
Union  Ass'n  Co.,  142  Mass.  142  (waiver  of 
defects  in  proof  of  loss). 

Canton  Co-operative  Bank  v.  American  Cen- 
tral Ins.  Co.,  219  Mass.  132  (waiver  of 
right  to  require  arbitration). 

Fall  River  v.  Aetna  Insurance  Company, 
219  Mass.  454  (denial  of  all  liability 
may  amount  to  waiver  of  arbitration 
right). 

D.   Equitable  Conversion. 

"Equitable  conversion  is  that  equitable  or  implied 
change  in  the  nature  of  property  by  which,  for  cer- 
tain purposes  in  equity,  real  estate  is  considered  as 
personal  and  personal  estate  as  real,  and  transmissible 
and  descendible  as  such."33  It  is  based  on  the  maxim 
that  equity  regards  that  as  done  which  ought  to  be 
done. 

Pomeroy's  Equity,  sec.  1159  et  seq. 

Being  an  equitable  doctrine,  conversion  is  enforced 
only  in  courts  of  equity,  except  where,  as  it  affects 
the  devolution  of  property,  it  is  recognized  in  pro- 
bate proceedings.  The  doctrine  is  principally  im- 
portant  in    America   to-day   in    determining   rights 


83  "The  effect  is  that  though  there  is  no  actual  change  in  the 
nature  of  the  property  all  the  legitimate  consequences  of  such  a 
change  will  result  so  far  as  persons  claiming  under  the  instrument 
or  its  author  are  concerned.  The  effects  of  conversion  extend  only 
to  those  persons,  however.    See  Pomeroy,  sec.  1166. 


SOME   DOCTRINES   IN   EQUITY  77 

between  heirs  and  personal  representatives.  The 
respective  rights  of  widows,  legatees,  and  devisees, 
may  also  depend  on  the  doctrine. 

See  cases  infra. 

Conversion  occurs  when  an  intention  is  absolutely 
expressed  in  a  will  or  other  instrument  that  land 
shall  be  sold  and  turned  into  money,  or  that  money 
shall  be  expended  in  the  purchase  of  land. 

Holland  v.  Cruft,  3  Gray  162,  at  180. 
Hammond  v.  Putnam,  110  Mass.  232. 
Perkins  v.  Coughlin,  148  Mass.  30. 
Hovey  v.  Dary,  154  Mass.  7. 
Thissell  v.  Schillinger,  186  Mass.  180. 

It  occurs  immediately  on  the  death  of  a  testator, 
if  in  a  will,  or  on  the  execution  of  an  instrument  inter 
vivos. 

Hammond  v.  Putnam,  110  Mass.  232  (will). 
Pomeroy,  sec.  1162. 

It  occurs  even  though  the  person  charged  with 
making  the  change  has  not  done  so. 

Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  215. 

It  is  immediate,  though  the  person  charged  with 
the  duty  has  power  to  delay  the  change. 

Morris  v.  Griffiths,  26  Ch.  Div.  601. 

Mellon  v.  Reed,  123  Penn.  1  (express  power 
to  delay). 

It  is  immediate,  though  the  change  is  to  be  made 
only  on  the  happening  of  an  event  certain. 


78  EQUITY  AND  ITS   REMEDIES 


Asche  v.  Asche,  113  N.  Y.  232. 

But  it  occurs  only  when  the  event  takes  place,  if 
dependent  on  an  event  uncertain. 

Peter  v.  Beverly,  10  Peters  532. 

Duration  of  Equitable  Character. 

If  the  purpose  for  which  conversion  is  ordered 
fails,  in  whole  or  part,  the  property  not  converted 
remains  as  if  no  conversion  had  been  ordered  (or 
in  the  hands  of  a  trustee  may  give  rise  to  a  resulting 
trust). 

Ackroyd  v.  Smithson,  1  Brown's  Ch.  503. 
Pomeroy,  sec.  1169  et  seq. 

But  if  land  is  ordered  sold,  the  proceeds  to  be 
mixed  in  a  common  fund  for  payment  of  debts  and 
legacies,  there  is  conversion  as  to  the  whole  and  the 
surplus  is  personalty. 

Perkins  v.  Coughlin,  148  Mass.  30. 
Hammond  v.  Putnam,  110  Mass.  232. 

Where  land  is  sold  under  an  order  of  court  for  a 
specific  purpose,  the  surplus  money  as  between  the 
heirs  and  next  of  kin  is  considered  as  land.  Until 
it  reaches  a  person  absolutely  entitled  to  it,  it  is 
considered  realty  and  descends  as  such. 

Appeal  of  Wentz,  126  Penn.  541. 

Mass.  Rev.  Laws,  ch.  148,  sec.  9  (provides 
that  surplus  of  sales  of  deceased  person's 
land  shall  be  considered  real  property  in 
the  final  accounting). 

Where  land  held  in  trust  is  taken  by  eminent  do- 
main, the  proceeds  are  in  like  manner  held  as  land 


SOME   DOCTRINES   IN  EQUITY  79 

until  they  reach  the  hands  of  the  person  absolutely 
entitled  thereto. 

Gibson  v.  Cooke,  1  Met.  75. 
Davis  v.  Badlam,  165  Mass.  248. 
Simonds  v.  Simonds,  112  Mass.  157. 

Who  is  "a  person  absolutely  entitled  thereto?" 

1.  The  cestui  is  not. 

Hovey  v.  Dary,  154  Mass.  7. 

2.  In   some   jurisdictions   infants   and   lunatics 
are  not. 

In  re  Barker,  17  Ch.  Div.  241. 

Horton  v.  McCoy,  47  N.  Y.  21. 

Contra:  Emerson  v.  Cutler,  14  Pick.  108 
(on  the  ground  that  the  act  of  the 
guardian  is  the  act  of  the  minor). 

Holland  v.  Cruft,  3  Gray  162  (explaining 
Emerson  v.  Cutler,  and  decided  before  the 
statute  of  1836,  now  R.  L.,  ch.  148,  sec.  9). 

In  some  cases  the  proceeds  of  insurance  policies 
in  trust  estates,  not  expended  for  purposes  of  the 
trust,  will  be  regarded  in  equity  as  real  property 
belonging  to  the  owner  of  the  reversion. 

Hawes  v.  Lothrop,  38  Cal.  493. 

Where  land  is  converted  by  a  will  or  otherwise, 
all  parties  in  interest  may,  of  course,  by  some  un- 
equivocal act,  elect  to  take  it  as  realty.  That  is 
called  reconversion. 

Mellon  v.  Reed,  123  Penn.  1. 
Trask  v.  Sturges,  170  N.  Y.  482. 
Pomeroy,  sec.  1175  et  seq. 


80  EQUITY  AND  ITS  REMEDIES 


The  Statute  of  Frauds. 

The  doctrine  of  conversion  was  held  to  permit 
the  transfer  by  parol,  notwithstanding  the  Statute 
of  Frauds,  of  a  man's  interest  under  a  clause  in  a 
will  requiring  land  to  be  converted  into  money,  in 

Mellon  v.  Reed,  123  Penn.  1.  (Oral  exchange 
of  his  interest  for  a  cow,  held  to  be  a  mere 
assignment  of  a  chose  in  action,  even 
though  subsequent  reconversion  by  other 
heirs). 

In  determining  inheritance  taxes,  the  doctrine  is 
not  to  be  invoked,  so  as  to  compel  the  executor  to 
bring  personalty  from  another  jurisdiction  to  free 
from  incumbrance  real  estate  in  Massachusetts  and 
thereby  increase  the  tax. 

McCurdy  v.  McCurdy,  197  Mass.  248. 
But  see  In  re  Shoenberger,  221  Penn.  112. 

Conversion  in  Land  Contracts. 

After  the  making  of  a  contract  for  the  sale  of  land 
or  other  property  as  to  which  specific  performance 
may  be  had,  equity  considers  the  agreed  vendee  the 
owner  of  the  property  and  the  agreed  vendor  the 
owner  of  the  purchase  money.84 

Pomeroy,  sees.  1161-1166. 

The  agreed  vendor,  before  conveyance  is  made, 
is  sometimes  called  a  trustee  for  the  vendee,  although 
the  analogy  between  agreed  vendor  and  mortgagee 
seems  closer. 


84  In  case  of  the  failure  of  the  agreed  vendee  to  complete  the  pur  - 
chase,  it  is  sometimes  a  vexing  question  as  to  when  the  relation  ends. 
See  decree  foreclosing  vendee's  rights  in  Button  v.  Schroyer,  5  Wis. 
598;  Ames  225. 


SOME  DOCTRINES  IN   EQUITY  81 

Felch  v.  Hooper,  119  Mass.  52  (likened  to 

trustee). 
Merrill  v.  Beckwith,  163  Mass.  503;  Ames  19. 
Rayner  v.  Preston,  L.  R.   18  Ch.  Div.   1; 

Ames  229. 
Button  v.  Schroyer,  5  Wise.  598;  Ames  225. 
Ames    240,     note     (relation    analagous    to 

mortgagor  and  mortgagee). 

The  validity  of  a  contract  is  a  requisite  for  con- 
version. 

Thomas  v.  Howell,  34  Ch.  Div.  166;  Ames 
196  (none  where  agreed  vendor  has  no 
title). 

Blew  v.  McClelland,  29  Mo.  304;  Ames  237 
(none  in  oral  contract  to  convey  land). 

Curre  v.  Bowyer,  5  Beavan  6;  Ames  196 
(if  contract  valid,  but  specific  performance 
impossible  through  laches,  consequences 
of  conversion  are  present). 

Effect  of  Death  of  Party. 

If  an  agreed  vendor  dies,35  his  legal  title  descends 
to  his  heirs,  but  they,  being  volunteers,  hold  it  sub- 
ject to  the  duty  to  convey  to  the  agreed  vendee,  in 
which  case  the  purchase  money  goes  to  the  agreed 
vendor's  personal  representative.  The  latter  may 
even  compel  specific  performance  by  the  heirs  and 
agreed  vendee,  although  neither  of  them  desires  it.88 


35  In  Massachusetts,  by  statute,  the  executor  or  administrator 
of  the  agreed  vendor  may  be  ordered  to  make  the  conveyance. 
Mass.  Rev.  Laws,  ch.  148,  sec.  1. 

36  Thus,  if  A  agree  to  convey  to  B  and  die  before  doing  so,  there 
may  be  these  actions: —  (1)  B  v.  A's  heirs  (or  devisees)  and  A'a 
administrator  (or  executor);  (2)  A's  administrator  (or  executor)  v. 
B  and  A's  heirs  (or  devisees) ;  (3)  A's  heirs  (or  devisees  v.  B  and 
A's  administrator  or  executor.  Decree  would  be  that  A's  heirs  (or 
devisees)  convey  to  B  upon  receipt  by  A's  administrator  (or  executor) 
of  purchase  price. 


82  EQUITY  AND   ITS   REMEDIES 


Bubb's  Case,  Freeman  Ch.  38;  Ames  194. 

If  an  agreed  vendee  dies,  his  heirs  or  devisees  are 
necessary  parties  to  a  suit  for  specific  performance. 
If  they  seek  to  compel  conveyance,  the  suit  should 
be  against  the  agreed  vendor  for  the  conveyance  of 
the  land,  and  the  agreed  vendee's  administrator  for 
the  payment  of  the  purchase  money." 

Conversion  takes  place  though  a  valid  contract  is 
rescinded  after  the  death  of  the  agreed  vendee.  His 
heirs  are  then  entitled  to  the  purchase  money  which 
would  have  been  paid  for  the  land. 

Matthews  v.   Gadd,   5   So.   Australia   129; 
Ames  193. 

Green  v.  Smith,   1  Atkyns  572;  Ames  193. 
(Vendor's  title  defective;  no  conversion). 

Where  a  man  has  made  a  contract  to  sell  real  estate, 
and  then  makes  a  will  devising  it,  the  devisee  will 
be  entitled  to  the  proceeds  of  the  sale,  because  that 
is  presumed  to  be  the  intention  of  the  testator;  but 
where,  after  having  given  the  property  by  will,  the 
testator  agrees  to  sell  it  and  the  sale  is  afterward 
made,  the  interest  of  the  devisee  is  taken  away. 

Mayer  v.  Gowland,  2  Dickens  563;  Ames  195. 
Townley  v.  Bidwell,  14  Vesey  591;  Ames  199. 

Effect  upon  Dower  and  Curtesy. 

Where  one  before  marriage  has  agreed  to  sell  land, 
the  spouse  is  held  in  equity  to  have  no  dower  or 
curtesy  in  it  (as  the  agreed  vendor  is  but  a  trustee 
of  the  legal  title). 


87  Thus,  if  A  agree  to  convey  to  B  and  B  die  before  receiving  con- 
veyance, there  may  be  these  actions: —  (1)  B's  heirs  (or  devisees) 
v.  A  and  B's  administrator  (or  executor) ;  (2)  A  v.  B's  heirs  (or  devi- 
sees) and  B's  administrator  (or  executor) ;  (3)  B's  administrator  (or 
executor)  v.  A  and  B's  heirs  (or  devisees). 


SOME  DOCTRINES  IN  EQUITY  83 

Dooley  v.  Merrill,38  216  Mass.  500  (in  which 
woman  was  vendor). 

Dean  v.  Mitchell,  4  J.  J.  Marshall  (Ky.)  451; 

Ames  204  (in  which  man  was  vendor). 

When  the  agreed  vendee  dies  before  obtaining  a 
conveyance,  his  widow  ordinarily  has  no  dower, 
because  a  widow  has  no  dower  in  the  equitable  estate 
of  her  husband. 

Lobdell  v.  Hayes,  4  Allen  187  (no  dower 
where  contract  wholly  executory  at  his 
death). 

But,  in  Massachusetts,  the  widow  of  an  agreed 
vendee  has  been  held  to  have  dower  in  a  case  where 
the  purchase  money  was  paid  during  the  lifetime  of 
her  husband.  This  was  the  result  of  the  construction 
of  a  statute  (now  somewhat  modified). 

Reed  v.  Whitney,  7  Gray  533  (discussion  of 
principle). 

Effect  of  Loss  before  Conveyance. 

The  agreed  vendor  may  enjoin  the  vendee  against 
waste  which  affects  the  security,  and  the  vendee 
may  likewise  enjoin  the  vendor  against  waste. 

Crockford  v.  Alexander,  15  Vesey  138;  Ames 
221  (vendee's  waste). 

Clarke  v.  Ramuz,  L.  R.  1891,  2  Q.  B.  456; 
Ames  222  (vendor's  waste). 

If  the  buildings  are  destroyed  by  fire  or  other 
casualty  before  the  title  is  passed,  in  most  jurisdictions 


88  In  Dooley  v.  Merrill,  however,  the  court  enjoined  the  husband 
from  claiming  curtesy. 


84  EQUITY  AND  IT  REMEDIES 

the  loss  falls  upon  the  agreed  vendee  as  the  equitable 
owner. 

Paine  v.  Meller,  6  Vesey  349;  Ames  227. 

And  this  is  true  in  some  jurisdictions,  although 
the  vendor  is  in  possession  and  the  time  for  passing 
title  has  not  arrived. 

Brewer  v.  Herbert,  30  Md.  301. 

Contra:  Goldman  v.  Rosenberg,  116  N.  Y.  78. 

Where  the  rule  in  Paine  v.  Meller  applies,  if  the 
vendor  recovers  insurance  he  ordinarily  does  so  to 
the  use  of  the  vendee. 

Skinner  v.  Houghton,  92  Md.  68. 

Contra :  Rayner  v.  Preston,  L.  R.  18  Ch.  Div. 
1;  Ames  229. 

In  Massachusetts,  the  rule  in  Paine  v.  Meller  is 
not  law,  unless  a  contract  for  sale  plainly  implies 
that  the  vendee  takes  the  chance  that  the  building 
may  be  burned.  A  condition  that  the  buildings 
shall  exist  is  implied,  and  so  the  loss  is  on  the  vendor.39 

Hawkes  v.  Kehoe,  193  Mass.  419. 

Thompson  v.   Gould,   20  Pick.    134;  Ames 
234. 

Wells  v.  Calnan,  107  Mass.  514. 

Allyn  v.  Allyn,  154  Mass.  570  (where  plainly 
implied  that  vendee  took  the  chance). 


89  This  is  sometimes  said  to  be  the  legal  rather  than  the  equitable 
rule,  but  it  appears  to  prevail  in  equity  in  Massachusetts  and  the 
following  other  jurisdictions: —  New  Hampshire,  Maine,  Oregon 
and  New  York.  Cases  in  all  these  except  New  York  have  held 
vendor  liable  even  though  vendee  in  possession. 
h  For  a  discussion  of  this  rule  in  a  satirical  vein,  see  "The  Lawyers' 
Ignorance  of  the  Law"  in  the  Outlook  for  September  5,  1908. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  85 


CHAPTER  VI. 
SOME  SPECIFIC  GROUNDS  FOR  RELIEF 

A.  Accident. 

B.  Mistake. 

1.  Excusable  Ignorance  of  a  Material  Matter 

a.  Mistakes  of  Law. 

b.  Mistakes  of  Fact. 

2.  Mistakes  in  Written  Instruments. 

3.  Relief  Generally. 

C.  Fraud. 

1.  Jurisdiction. 

2.  Constructive  Fraud. 

a.  Apparent  from  the  Bargain  Itself. 

b.  Presumed  from  the  Circumstances  of 

the  Parties. 

c.  Transactions  Injurious  to  Third  Per- 

sons —  Fraudulent  Conveyances. 

d.  Transactions  Void  as  Against  Public 

Policy. 

3.  Remedies  in  Fraud. 

a.  Remedies  at  Law. 

b.  Remedies  in  Equity. 


86  EQUITY  AND   ITS   REMEDIES 

A.   Accident. 

Accident,  as  the  term  is  used  in  equity,  is  an  unfore- 
seen and  unexpected  event  occurring  to  a  party  in- 
juriously affected  by  it,  and  not  attributable  to  his 
neglect  or  misconduct,1  which  but  for  the  relief  in 
equity  would  result  in  an  undue  advantage  to  some 
other  party. 

Equity  has  from  earliest  times  relieved  against  the 
consequences  of  such  accidents. 

Savannah  Nat'l  Bank  v.  Haskins,  101  Mass. 

370. 
Pomeroy,  sec.  823  (see,  for  a  full  definition). 

In  the  case  of  lost  instruments  under  seal,  there 
was  early  jurisdiction  because  of  the  impossibility 
of  making  profert  at  law,  and,  in  the  case  of  unsealed 
instruments,  because  of  the  impossibility  of  comply- 
ing with  the  legal  right  of  the  person  paying  to  possess 
the  note  paid.  In  both  cases  equity  required  an 
indemnity  bond  from  the  plaintiff,  to  protect  the 
defendant  from  the  effects  of  an  appearance  of  the 
instrument  in  the  hands  of  a  bona  fide  holder  for  value. 

Savannah  Nat'l  Bank  v.  Haskins,  101  Mass 

370. 
Patton  v.  Kimball,  70  111.  72  (bond). 

In  Massachusetts,  before  the  courts  had  general 
equity  jurisdiction,  it  was  well  settled  (either  as  a 
rule  of  practice  or  of  law)  that  recovery  might  be 
had  at  law  on  lost  instruments  provided  the  plain- 
tiff, if  necessary  to  the  protection  of  the  defendant, 
gave  an  indemnity  bond. 

Fales  v.  Russell,  16  Pick.  315  (bond). 
Munroe  v.  Weir,   177  Mass.  301  (no  bond 
required). 


1  Cases,  referred  by  some  writers  to  this  general  head  of  equity 
jurisdiction,  seem  to  violate  this  requirement  of  the  definition. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  87 

But  such  recovery  is  not  allowed  at  law  in  Massachu- 
setts where  a  bond  to  indemnify  would  not  ade- 
quately protect  the  defendant. 

Tuttle  v.  Standish,  4  Allen  481;  (where 
defendant  was  an  indorser;  no  recovery  at 
law,  though  perhaps  in  equity). 

Savannah  Nat'l  Bank  v.  Haskins,  101  Mass. 
370  (recovery  in  equity). 

Tower  v.  Appleton  Bank,  3  Allen  387  (de- 
stroyed bank  notes). 

Hinsdale  v.  Bank  of  Orange,  6  Wendell  678 
,  (discussion  on  lost  bank  notes). 

Among  the  other  accidents2  from  the  results  of 
which  equity  may  relieve,  are 

1.  The  defective  execution  of  powers,  where  the 
defect  is  a  formal  one. 

Coates  v.  Lunt,  210  Mass.  314. 

2.  Those  that  so  prevent  a  defendant  in  an  action 
at  law,  without  any  negligence  on  his  part,  or  the 
part  of  his  attorney,  from  setting  up  a  good  defense 
on  the  merits,  that  a  judgment  is  rendered  against 
him. 

See  Chapter  VIII,  Part  B,  infra. 

3.  Certain  kinds  of  forfeitures.3 

Relief  from  pecuniary  forfeitures  is  a  settled 
branch  of  equity.  Relief  from  other  kinds  of  for- 
feitures may  be  had  in  equity. 


a  See  generally  Pomeroy,  sees.  833-836;  Eaton,  chap.  XI. 

8  Some  writers  refer  the  whole  subject  of  penalties  and  forfeitures, 
as  applied  to  mortgages,  etc.,  to  the  head  of  Accident.  This  is 
probably  erroneous  so  far  as  pecuniary  penalties  are  concerned. 


88  EQUITY  AND   ITS   REMEDIES 

Mactier  v.  Osborne,  146  Mass.  399  (acciden- 
tal breach  of  covenant  in  lease). 

Lilley  v.  Fifty  Associates,  101  Mass.  432. 

4.  Certain  contingencies  arising  in  the  settlement 
of  estates,  as  payments  made  in  good  faith  by  execu- 
tors where  later  there  proves  to  be  a  deficiency  of 
assets. 

Story's  Equity,  sec.  90  et  seq. 

5.  Alteration  or  mutilation  of  written  instruments 
which  would  render  them  void  or  useless  at  law. 

Nickerson  v.  Sweet,  135  Mass.  514  (innocent 
change  in  interest  rate  in  note). 

Niles  v.  Graham,  181  Mass.  41  (mutilation 
of  patent  assignment). 

But  the  equitable  doctrine  of  accident  may  not  be 
invoked  to  relieve  one  from  the  performance  of  a 
duty  imposed  by  express  agreement  of  the  parties 
(except  in  the  matter  of  relief  from  penalties  in  bonds). 

Milldam  Foundry  v.  Hovey,  21  Pick.  417, 

at  441  (rule  stated). 

Davis  v.  Alden,  2  Gray  309  (agreement  to 
pay  rent,  with  no  provision  against  fire). 

Adams  v.  Nichols,  19  Pick.  275  (contract  to 
build  house;  fire). 

The  relief  will  not  be  granted  against  one  equally 
entitled  to  equitable  protection,  as,  for  example,  a 
bona  fide  purchaser  without  notice. 

Pomeroy,  sec.  829. 

B.   Mistake. 

Mistake,  as  a  ground  for  affirmative  relief  in  equity, 
is 

(1)  Excusable  ignorance  of  some  material  matter 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  89 

of  law  or  fact  by  which  a  party  has  been  led  to  part 
with  some  right  or  to  assume  some  obligation,  or 

(2)  An  error  or  omission  in  a  written  instrument 
whereby  it  fails  to  express  the  actual  agreement  of 
the  parties.4 

1.  Excusable  Ignorance. 

(a)  Mistakes  of  Law.5 

A  mere  mistake  as  to  general  law  by  one  party  to 
a  contract  ordinarily  affords,  in  the  absence  of  fraud, 
no  ground  for  relief  at  law  or  in  equity. 

Utermehle  v.  Norment,  197  U.  S.  40. 

Taylor  v.  Buttrick,  165  Mass.  547  (relief 
denied  where  ignorance  of  legal  effect  of 
voluntary  settlement). 

Hunt  v.  Rousmaniere's  Admr.,  1  Peters  1; 
(creditor  took  power  of  attorney  as  se- 
curity. Debtor  died.  No  relief.  He  got 
security  he  intended). 

But  a  clearly  established  mutual  mistake  of  law 
"does  create  a  basis  for  the  interference  of  courts 
of  equity,  resting  on  discretion  and  to  be  exercised 
only  in  the  most  unquestionable  and  flagrant  cases." 
In  such  cases  the  ground  for  relief  is  not  that  there 
has  been  a  mistake  of  law,  but  that  by  means  of  a 
mistake  of  law  the  clear  intent  of  the  parties  has  failed 
of  expression,6  and  that  but  for  equitable  relief 
there  would  result  the  unjust  enrichment  of  one  at 
the  expense  of  the  other. 


4  Accident  refers  to  an  event  external  to  the  party  injuriously 
affected  and  subsequent  to  some  obligation;  mistake  is  subjective,  an 
erroneous  mental  condition  at  or  before  the  incurring  of  an  obligation . 

5  Certain  mistakes  of  law  are  considered  mistakes  of  fact  and 
remediable  as  such.    See  infra. 

6  See  Mistakes  in  written  instruments,  infra. 


90  EQUITY  AND  ITS  REMEDIES 

Reggio  v.  Warren,  207  Mass.  525  (full  dis- 
cussion by  Sheldon,  J.). 

Griswold  v.  Hazard,  141  U.  S.  260,  (injunc- 
tion against  suit  on  a  we  exeat  bond  con- 
ditioned that  the  principal  should  "abide 
and  perform"  decrees  of  court;  obligation 
thereunder  to  pay  was  misunderstood). 

Stockbridge  Iron  Co.  v.  Hudson  Iron  Co., 
102  Mass.  45. 

So  mistakes  as  to  titles  have  been  corrected,  the 
word  "heirs"  substituted  for  "successors,"  the 
omission  of  words  of  inheritance  supplied,  a  deed 
reformed  to  bind  a  partnership  rather  than  an  indi- 
vidual member,  and  a  mortgage  in  the  name  of  an 
agent  rectified  by  inserting  a  principal's  name.7 

J.  P.  Eustis  Mfg.  Co.  v.  Saco  Brick  Co., 
198  Mass.  212  (and  cases  there  collected). 

Mistake  of  law  by  one  party  to  a  contract,  result- 
ing from  "undue  influence"  of,  or  from  "undue  con- 
fidence" in,  the  other  party,  may  be  ground  for  relief 
as  fraud. 

Eaton's  Equity,  sec.  112. 

See  Constructive  Fraud,  infra. 

Money  paid  under  mistake  of  law  probably  cannot, 
in  the  absence  of  fraud,  be  recovered  at  law  or  in 
equity.8  It  may,  however,  where  paid  under  a 
mistake  of  fact. 

Haven  v.  Foster,  9  Pick.  112  (mistake  of 
foreign  law,  a  fact). 


7  In  this  class  of  cases,  the  mistake  is  sometimes  one  of  law  and 
sometimes  a  mistake  of  the  scriveDer.  See  Mistakes  in  Written  In- 
strument?, infra. 

8  But  see  the  reasoning  of  Sheldon,  J.,  in  Reggio  v.  Warren,  207 
Mass.  525,  regarding  "unjust  enrichment." 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  91 

Gould  v.  Emerson,  160  Mass.  438  (mistake 
of  fact;  equity). 

(b)  Mistakes  of  Fact. 

Mutual9  mistake  (not  the  result  of  a  neglect  of 
plaintiff's  duty)  as  to  a  fundamental  fact,  past  or 
present10  (such  as  the  existence  or  the  identity  of 
the  subject  matter),  is  such  mistake  of  fact  as  to  be 
the  ground  for  relief  in  equity  from  the  consequences 
of  an  agreement  based  thereon. 

Hammond  v.  Allen,  11  Peters  63  (subject 
matter  had  ceased  to  exist  before  contract 
was  made). 


9  There  is  much  discussion  in  the  cases  and  the  textbooks  as  to 
whether  or  not  mistakes,  to  be  the  basis  of  a  remedy,  must  be  mutual. 
Much  of  this  discussion  results  from  a  lack  of  clear  definition  of  the 
word  "mutual."  In  a  case  such  as  Kyle  v.  Kavanagh  (103  Mass. 
356),  the  plaintiff  was  negotiating  about  one  property  and  the 
defendant  another.  Strictly  speaking,  the  mistake  was  not  mutual. 
They  did  not  share  the  same  error,  but  each  was  in  error  as  to  the 
understanding  of  the  other  and  there  was  no  valid  contract  at  law 
or  in  equity. 

In  Dzuris  v.  Pierce  (216  Mass.  132),  the  court  says  that  such 
a  misunderstanding  touching  the  identity  of  the  subject  matter, 
in  order  to  be  ground  for  relief  in  equity,  must  not  have  arisen  from 
the  voluntary  negligence  or  failure  to  obtain  reasonably  accessible 
knowledge  on  the  part  of  the  plaintiff,  in  the  absence  of  fraud  or 
duress.  But,  if  there  is  no  contract,  why  should  equity  not  always 
relieve,  by  canceling  the  instrument,  if  there  is  one?  Does  not  the 
court  mean  that  where  the  language  adequately  describes  the  sub- 
ject matter  but  the  plaintiff  erroneously  believes  it  refers  to  some 
other  subject  matter,  he  can  only  have  relief  under  the  foregoing 
circumstances?  In  Dzuris  v.  Pierce,  the  deed  correctly  described 
the  property  the  grantor  intended  to  sell,  but  not  that  the  grantee 
thought  he  had  bought.  The  mistake,  therefore,  was  unilateral 
and  relief  was  only  had  there  because  of  facts  which  in  similar  cases 
have  been  called  constructive  fraud. 

In  other  cases,  such  as  Spurr  v.  Benedict  (99  Mass.  463)  cited  by 
Merwin  as  a  case  founded  on  unilateral  mistake,  there  was  clearly 
a  mutual  mistake  as  to  the  identity  of  the  subject  matter  caused  by 
misrepresentations,  made  through  ignorance,  by  the  defendant,  who 
was  the  grantor  in  a  deed. 

10  Mistake  as  to  probability  of  occurrence  of  an  event  in  the 
future  is  not  mistake  of  fact,  within  the  foregoing  definition.  Parke 
v.  Boston,  175  Mass.  463. 


92  EQUITY  AND   ITS   REMEDIES 

Long  v.  Athol,  196  Mass.  497  (relief  for 
contractor  who  relied  upon  erroneous 
engineering  figures  furnished  by  town). 

Gould  v.  Emerson,  160  Mass.  438  (note 
drawn  for  erroneous  amount  on  settle- 
ment of  partnership  accounts). 

Bridgewater  Iron  Co.  v.  Enterprise  Ins.  Co., 
134  Mass.  433  (existence  of  previous  in- 
surance not  a  fundamental  fact). 

But  mutual  mistake  as  to  some  matter  collateral 
to  the  bargain  itself  (such  as  the  value  of  property) 
is  not  a  ground  for  relief  in  equity.11 

Hecht  v.  Batchelder,  147  Mass.  335  (no 
relief  where  promissory  note  is  bought 
through  broker,  with  belief  of  all  parties 
that  maker  was  solvent.  At  law;  but 
probably  same  rule  in  equity). 

Wood  v.  Boynton,  64  Wis.  265  (stone  sold 
for  one  dollar,  mutually  considered  a 
topaz,  proved  to  be  diamond.     No  relief). 

Mutual  mistake  as  to  one's  existing  legal  title, 
duties  or  liabilities  of  property  or  contract,  or  as  to 
a  right  of  ownership  dependent  on  a  special  law  or 
a  foreign  law,  is  analogous  to  mistake  of  fact  and 
may  be  the  basis  of  relief.12 

Livingstone  v.  Murphy,  187  Mass.  315 
(mistake  as  to  title  leading  to  mistake  in 
written  instrument). 

Tarbell  v.  Bowman,  103  Mass.  341  (mistake 
as  to  area). 


11  But  see  Chapman  v.  Cole,  12  Gray  141.  (Trover  for  coin  thought 
to  be  fifty-cent  piece  but  in  fact  a  private  coin  of  gold). 

13  This,  of  course,  does  not  apply  to  compromises  entered  into 
for  the  purpose  of  settling  rights.    Pomeroy,  sec.  849. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  93 

Short  v.  Currier,  153  Mass.  182  (mistake  as 
to  later  incumbrances.  Remedy  was  the 
changing  of  a  mortgage  discharge  to  an 
assignment). 

Spurr  v.  Benedict,  99  Mass.  463  (innocent 
misrepresentations  of  essential  features  of 
land  sold). 

Boyden  v.  Hill,  198  Mass.  477  (a  mistake 
by  agreed  vendor  as  to  title,  not  mutual. 
No  equitable  relief  for  him,  sued  in  con- 
tract). 

Haven  v.  Foster,  9  Pick.  112  (mistake  as 
to  foreign  law). 

Shapira  v.  Wildey  Sav.  Bank,  213  Mass. 
498  (bill  to  rescind  purchase  from  de- 
fendant of  a  mortgage,  part  of  which  had 
been  released). 

Mistake  usually  must  be  mutual  to  be  ground  for 
relief  as  such,  unless  the  mistake  of  a  single  party  is 
not  due  to  his  culpable  negligence,  and  is  as  to  a  fun- 
damental fact  in  the  transaction  which  was  known  or 
ought  to  have  been  known  to,  and  should  have  been 
disclosed  by,  the  other  party,  or  unless  there  has 
been  fraud  or  duress,  actual  or  constructive. 

Dzuris  v.  Pierce,  216  Mass.  132. 

Clerk  v.  Boston,  179  Mass.  409  (contract. 
Voluntary  ignorance  or  involuntary  mis- 
interpretation affords  no  relief). 

Short  v.  Currier,  153  Mass.  182  (unilateral 
error  as  to  condition  of  title  relieved). 

Chute  v.  Quincy,  156  Mass.  189. 

Inasmuch  as  a  claim  that  there  has  been  a  funda- 
mental mistake,  so  that  there  has  been  no  valid 
agreement,  is  a  disaffirmance  of  the  alleged  con- 
tract, the  only  relief  that  can  be  given  is  a  cancel- 
lation of  such  contract,  if  executory,  or  a  rescission, 


94  EQUITY  AND  ITS   REMEDIES 

if  executed.     Equity  cannot  make  a  new  contract 
for  the  parties. 

Long  v.  Athol,  196  Mass.  497. 

Shapira  v.  Wildey  Sav.  Bank,  213  Mass. 
498  (decree  placing  parties  in  statu  quo). 

2.   Mistakes  in  Written  Instruments. 

If  a  written  instrument  inter  vivos  clearly  fails, 
through  its  form,  or  through  an  error  of  the  scrivener, 
to  express  the  prior  agreement  of  the  parties,  equity 
will  reform  it  upon  clear  proof  of  the  agreement  and 
of  the  mutual  mistake  in  the  writing,  or  the  equiva- 
lent thereof  (i.  e.  knowledge  on  the  part  of  one  that 
the  other  is  laboring  under  a  mistake  as  to  the  cor- 
rectness of  the  writing). 

Canedy  v.  Marcy,  13  Gray  373  (whole 
estate  conveyed,  through  error,  instead  of 
"undivided  two-thirds"). 

Bruce  v.  Bonney,  12  Gray  107  (discharge  of 
mortgage  on  margin,  instead  of  assign- 
ment). 

Snell  v.  Atlantic  F.  M.  Ins.  Co.,  98  U.  S. 
85  (mistake  in  name  ot  insured  in  policy). 

Hodge  v.  Cole,  140  Mass.  116  (failure  of 
holder  of  note  to  indorse,  on  transfer). 

Goode  v.  Riley,  153  Mass.  585  (both  par- 
ties understood  language  in  deed  to 
describe  smaller  tract  than  actually  de- 
scribed). 

Gaylord  v.  Pelland,  169  Mass.  356  (seal 
omitted  Aby ^mistake,  may  be  added  by 
equity). 

Coates  v.  Lunt,  213  Mass.  401  (bill  to  require 
heirs  of  one  who  had  defectively  executed 
power,  to  confirm  the  deed). 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  95 

Kennedy  v.  Poole,  213  Mass.  495  (to  reform 
mortgage  intended  to  be  a  deed.  See 
decree  of  reformation). 

J.  P.  Eustis  Mfg.  Co.  v.  Saco  Brick  Co., 
198  Mass.  212  (see  cases  there  collected). 

But  if  one  party  understood  the  original  agree- 
ment to  be  substantially  as  written,  the  other  may 
not  ordinarily  have  relief  for  mistake,  in  the  absence 
of  fraud.13 

Sawyer  v.  Hovey,  3  Allen  331  (rule  clearly 
stated). 

German- American   Ins.    Co.   v.   Davis,    131 

Mass.  316. 

Page  v.  Higgins,  150  Mass.  27  (combination 
of  unilateral  mistakes). 

Chute  v.  Quincy,  156  Mass.  189. 

But  a  donor  may  have  reformation  of  an  instru- 
ment of  gift  that  fails  to  express  his  intention  at  the 
time  he  made  the  gift.  The  donee,  being  a  volun- 
teer, is  not  entitled  to  relief. 

German  v.  Grim,  32  Ind.  255. 

Eaton  v.  Eaton,  15  Wise.  259;  2  Ames  244. 

Mistakes  in  wills  are  not  corrected  in  equity 
(except  that  the  court  may  interpret  latent  ambiguities 
as  to  names,  descriptions,  etc.). 

Polsey  v.  Newton,  199  Mass.  450  (the  word 
"grand-daughters"  will  not  be  reformed 
to  "daughters"). 


u  Mistake  is  sometimes  said  to  be  the  formation  of  an  incorrect 
mental  picture  of  a  situation.  Fraud  is  mistake  plus  the  unlawful 
causing  of  the  incorrect  mental  picture  by  another. 


96  EQUITY  AND   ITS  REMEDIES 


Otis  v.  Coffin,  7  Gray  511  (devise  in  English 
will  of  "property  at  Boston,  North 
America"  held  to  include  land  in  Brighton, 
Mass.). 

Inasmuch  as  a  claim  that  a  written  instrument 
does  not  express  the  agreement  of  the  parties,  is  an 
affirmance  of  the  original  contract,  the  only  relief 
given  under  such  circumstances  is  that  of  reforma- 
tion to  conform  to  the  agreement. 

"Mistake  of  Fact"  (E.  H.  Abbott,  Jr.), 
Harvard  Law  Review,  June,  1910. 

3.    Relief  Generally. 

Relief  should  be  sought  diligently,  after  the  dis- 
covery of  mistake. 

Canedy  v.  March,  13  Gray  373  (although, 
in  this  case,  relief  was  given  twenty  years 
after  deed,  it  was  shortly  after  discovery 
of  error). 

Gould  v.  Emerson,  160  Mass.  438  (statutes 
of  limitations  run  from  discovery,  only). 

If  the  party  against  whom  the  equitable  right 
existed  has  died,  suit  may  be  brought  against  his  heirs 
or  personal  representatives,  who  are  volunteers. 

Kennedy  v.  Poole,  213  Mass.  495. 
Coates  v.  Lunt,  213  Mass.  401. 

A  party  will  usually  be  relieved  from  his  own 
mistake  only  when  no  third  person,  without  notice, 
has  obtained  rights;  but  he  may  recover  the  value 
of  the  property  in  place  of  the  property,  in  an  appro- 
priate case. 

Tarbell  v.  Bowman,  103  Mass.  341. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  97 

Dzuris  v.  Pierce,  216  Mass.  132  (where 
rights  of  an  intervening  mortgagee  were 
protected). 

The  evidence  required  in  Massachusetts  as  a  basis 
for  reforming  a  written  instrument  is  stronger  than 
that  required  in  ordinary  civil  cases.  It  must  be 
beyond  a  reasonable  doubt. 

Stockbridge  Iron  Co.  v.  Hudson  Iron  Co., 
107  Mass.  315. 

German  American  Ins.  Co.  v.  Davis,  131 
Mass.  316. 

Parol  evidence,  by  the  general  rule,  is  competent 
to  prove  the  existence  of  a  mistake  in  a  written 
instrument. 

Snell  v.  Atlantic  etc.  Ins.  Co.,  98  U.  S.  85. 
Kennedy  v.  Poole,  213  Mass.  495. 

Where  it  is  sought  to  correct  a  mistake  by  adding 
to  an  instrument  something  required  by  the  Statute 
of  Frauds  to  be  in  writing,  the  original  agreement 
must  have  been  in  writing,  unless  the  defendant 
for  some  reason  is  precluded  from  setting  up  the 
Statute  of  Frauds  as  a  defence. 

Glass  v.  Hulbert,  102  Mass.  24. 
Williams  v.  Carty,  205  Mass.  396. 

If  the  plaintiff  is  an  agent,  and  his  principal  who 
should  have  been  liable  under  a  contract  is  a  non- 
resident, the  plaintiff,  instead  of  reformation,  may 
have  the  defendant  enjoined  from  enforcing  the 
contract  against  him. 

J.  P.  Eustis  Mfg.  Co.  v.  Saco  Brick  Co. 
198  Mass.  212. 


98  EQUITY  AND  ITS   REMEDIES 

The  relief  may  take  the  form  of  re-establishing  a 
mortgage  of  which  a  discharge  has  been  taken  in- 
stead of  an  assignment. 

Short  v.  Currier,  153  Mass.  182. 

C.  Fraud. 

1.  Jurisdiction. 

The  jurisdiction  of  equity  over  actual  fraud  was 
earlier  than  that  of  the  common  law14  and  in  Eng- 
land is  today  general.16  In  America,  while  the  juris- 
diction of  equity  to  administer  equitable  remedies 
in  fraud  (as  well  as  to  deal  with  cases  of  purely 
equitable  fraud)16  is  exclusive,  and  to  grant  pecuniary 
remedies  is  concurrent,  yet  the  equitable  jurisdiction 
will  commonly  not  be  exercised  in  cases  where  the 
legal  remedy  is  plain,  adequate  and  complete. 

Pomeroy,  sec.  914. 

Cook  v.  Scheffreen,  215  Mass.  444  (to  set 
aside  exchange  of  property). 

The  tendency  in  Massachusetts,  however,  since 
the  courts  have  had  full  equity  jurisdiction,  has  been 
toward  the  liberal  English  rule  as  to  the  jurisdiction 
of  courts  of  equity  in  cases  of  fraud. 

Billings  v.  Mann,  156  Mass.  203  (cancella- 
tion of  deed;  though  writ  of  entry  might 
have  been  had). 

Fuller  v.  Percival,  126  Mass.  381  (cancel- 
lation of  notes  fraudulent  as  to  a  partner). 

Stewart  v.  Joyce,  201  Mass.  301  (treasurer 
of  company  who  put  out  untrue  statement 
of  condition  in  order  to  sell  stock). 

Fraud,   going   to   the   motives   of   a   conveyance, 


M  Hill  v.  Lane,  L.  R.  11  Eq.  215. 

15  Pomeroy,  sec.  912. 

16  See  Constructive  Fraud,  infra. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  99 

renders  it  voidable.  In  England,  when  a  convey- 
ance is  avoided  for  fraud,  reconveyance  is  regarded 
as  necessary;  in  Massachusetts,  upon  avoidance,  a 
writ  of  entry  is  permitted  in  a  proper  case,  but  the 
equitable  remedy,  requiring  a  reconveyance,  is  con- 
current. 

Billings  v.  Mann  156  Mass.  203. 

Speaking  generally,  those  acts  which  would  be 
sufficient  ground  for  an  action  of  tort  for  deceit17 
are  sufficient  for  equitable  relief  where  the  relief 
afforded  at  law  would  not  be  adequate. 

Thompson  v.  Barry,  184  Mass.  429  (mis- 
statements of  agent  in  purchasing  prop- 
erty). 

Batty  v.  Greene,  206  Mass.  561  (to  compel 
restoration  of  money  to  man  by  woman 
who  had  lived  as  wife,  knowing  she  had 
husband  living). 

Burleson  v.  Woodin,  212  Mass.  323  (decree 
for  re-assignment  of  mortgage  obtained 
by  promoter). 

Stewart  v.  Joyce,  205  Mass.  371  (rescission 
of  sale  of  stock;  bill  by  vendor). 

Westlake  v.  Dunn,  184  Mass.  260  (deed 
fraudulently  obtained  and  recorded  set 
aside,  even  though  innocent  mortgagee 
had  loaned). 

Johnson  v.  Scott,  205  Mass.  294  (bill  to 
rescind  purchase  of  land  in  Maine,  because 
of  misrepresentation  as  to  title). 

Motherway  v.  Wall,  168  Mass.  333  (fraudu- 
lent statement  as  to  grantor's  title). 

Brackett  v.  Perry,  201  Mass.  502  (land 
owner  induced  to  sell  by  representation 


17  "It  is  still  an  open  question  here  whether  an  action  for  a  false 
representation  of  law  will  lie."    Kerr  v.  Shurtleff,  218  Mass.  167. 


100  EQUITY  AND  ITS  REMEDIES 

of  purchaser  that  no  broker  had  acted 
in  matter). 
Pogrotsky   v.    Levatinsky,    218    Mass.    116 
(to    compel   re-assignment   of    mortgage 
obtained  by  misrepresentations). 

Equity  may  relieve  from  the  results  of  such  fraud. 

Brown  v.  Statter,  206  Mass.  119  (by  re- 
straining the  collection  of  notes,  giving 
damages,  etc.). 

Stewart  v.  Joyce,  205  Mass.  371  (bill  by 
vendor  of  stock;  defendant  having  parted 
with  it,  damages  were  decreed  with  value 
as  of  date  of  transfer  of  stock;  different 
rule  if  defendant  sold  after  bill). 

An  unauthorized  fraudulent  representation  (or 
promise)  of  an  agent  is  good  ground  for  rescission  in 
a  suit  by  the  purchaser,  against  the  principal. 

Rackemann   v.   Riverbank   Imp.    Co.,    167 

Mass.  1. 
Thompson  v.  Barry,  184  Mass.  429. 

2.    Constructive  Fraud. 

Constructive  fraud  is  that  presumed  by  a  court 
of  equity  from  public  policy  or  from  the  relationship 
and  circumstances  of  the  parties  wholly  apart  from 
their  intention.     Under  this  designation  are  included, 

a.    Fraud  apparent  from  the  bargain  itself. 

Inadequacy  of  consideration,  while  not  of  itself 
fraudulent,  if  gross  and  supported  by  other  slight 
evidence,  warrants  a  finding  of  constructive  fraud. 

Graff  am  v.  Burgess,  117  U.  S.  192  (where 
defendant,  for  $200,  got  property  worth 
$10,000). 

Burrowes  v.  Locke,  10  Vesey,  471. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  101 


Davis  v.  Chicago  Dock  Co.,  129  111.  180 
(where  defendant  got  $230,000  property  at 
execution  sale  for  $17.24). 

Illegal  contracts,  or  such  general  limitations  as 
those  in  restraint  of  marriage  or  business,  are  fraud- 
ulent. 

Otis  v.  Prince,  10  Gray  581. 

Contracts  unduly  affecting  officers  of  the  govern- 
ment or  of  corporations  are  fraudulent. 

West  v.  Camden,  135  U.  S.  507  (permanent 
job  to  employees). 

b.    Fraud  presumed  from  the  circumstances  of 
the  parties. 

1.  Where  one  party  is  infirm,  insane,  drunk  or 
under  duress,  the  contract  is  voidable  as  to  him.18 
These  are  sometimes  said  to  be  cases  of  "undue  in- 
fluence." 

Smith  v.  Kenney,  213  Mass.  6  (deed  from 
aged  man  by  undue  influence). 

Campbell  v.  Lima,  212  Mass.  11  (deed  from 
aged  woman  by  undue  influence). 

2.  Where  one  party  holds  a  fiduciary  or  confiden- 
tial relation  with  the  other,  the  latter  way  avoid. 

Purchases  from,  or  sales  to,  himself,  of  trust  prop- 
erty19 by  a  trustee  or  by  an  attorney,  by  an  agent 
of  property  entrusted  him  to  sell,  by  an  executor  or 
administrator  of  any  part  of  a  decedent's  estate, 
or  by  a  guardian  of  his  ward's  property,  whether 
directly  or  indirectly,  at  private  sale  or  public  auction, 


18  In  these  cases,  where  the  condition  is  established,  there  is  a 
presumption  of  invalidity  which  may  be  overcome.  Pomeroy, 
sec.  944. 

19  For  a  case  where  conveyance  to  one  of  three  trustees,  through  a 
conduit,  was  held  good,  see  Warren  v.  Pazolt,  203  Mass.  328. 


102  EQUITY  AND   ITS   REMEDIES 

are  voidable  at  the  election  of  the  cestui,  principal, 
heir,  or  ward,  without  any  proof  of  actual  fraud  or 
undue  influence. 

Hawkes  v.  Lackey,  207  Mass.  425  (authori- 
ties collected). 

Kelley  v.  Allin,  212  Mass.  327. 

Rolikatis  v.  Lovett,20  213  Mass.  545  (an 
attorney  who  bought  at  foreclosure). 

Contracts  and  conveyances,  whether  with  or  with- 
out consideration,  between  a  lawyer  and  his  client, 
a  physician  and  his  patient,  a  clergyman  and  his 
parishoner,  a  promoter  and  his  corporation,  or  any 
other  trusted  advisor  and  his  dependent,  may  be 
set  aside*1  (or  otherwise  dealt  with)  in  equity  upon 
slight  evidence  of  undue  influence,  or  of  failure  to 
provide  the  dependent  party  with  the  fullest  disclosure 
of  facts22  or  with  an  independent  advisor.  This  is 
also  true  where  there  has  been  a  contract  or  con- 
veyance which  is  a  breach  of  a  fiduciary  duty. 

Huguinon  v.  Basley,  15  Ves.  273  (will 
made  by  patient  in  favor  of  physician). 

Gargano  v.  Pope,  184  Mass.  571  (champart- 
ous  contract  between  lawyer  and  client). 

Hill  v.  Hall,  191  Mass.  253  (sale  of  securities 
by  lawyer  to  client). 

American  Circular  Loom  Co.  v.  Wilson,  198 
Mass.  182  (factory  superintendent  who 
takes  assignment  from  inventor) 


20  But  see  Clark  v.  Delano,  205  Mass.  224,  where  the  agents' 
employment  had  been  terminated  by  circumstances  beyond  his 
control.  See  also  Manheim  v.  Woods,  213  Mass.  537,  where  trans- 
action between  attorney  and  client  was  found  to  be  good,  on  the 
facts. 

21  As  to  who  should  be  parties  plaintiff  where  the  defrauded  per- 
son had  died,  see  Parker  v.  Simpson,  180  Mass.  334. 

22  Some  of  these  cases  may  properly  be  classed  under  Actual  Fraud, 
because  there  is  in  them  the  element  of  misrepresentation  by  a  con- 
cealment of  material  facts  by  one  bound  to  disclose. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  103 

Essex  Trust  Co.  v.  Enwright,  214  Mass. 
507  (newspaper  reporter  obtained  lease 
of  property  absolutely  essential  to  his 
paper). 

Old  Dominion  Copper  Co.  v.  Bigelow, 
188  Mass.  315;  199  Mass.  488,  203  Mass. 
159;  225  U.  S.  Ill  (undisclosed  profits 
of  a  promoter23 recovered  by  corporation). 

Old  Dominion  Copper  Co.  v.  Lewisohn, 
136  Fed.  Rep.  915;  148  Fed.  Rep.  1020; 
210  U.  S.  206. 

Hawkes  v.  Lackey,  207  Mass.  425  (old 
ladies  and  law  student). 

Butler  v.  Gleason,  214  Mass.  248  (release 
obtained  by  physician  from  a  patient 
relying  on  his  statement,  of  no  value 
in  suit  by  her  against  him). 

United  Zinc  Companies  v.  Harwood,  216 
Mass.  474  (secret  profits  by  director). 

c.    Those  transactions  injurious  to  third  persons. 
The  most  important  class  of  these  is 

Fraudulent2*  Conveyances. 

A  conveyance  by  a  debtor  with  intent  to  delay 
hinder  or  defraud  his  creditors,  although  good  as 
between  the  parties,  is,  since  13  Elizabeth  chap.  5 
void  as  against  creditors. 

Mass.  Rev.  Laws,  ch.  159,  sec.  3,  cl.  8  (the 


23  For  a  case  where  all  the  stock  was  issued  to  the  promoter  and 
he  was  not  liable  to  the  corporation  for  profits,  see  Stratton  Co. 
v.  Stratton,  206  Mass.  117. 

24  Such  conveyances  are  usually  fraudulent  as  to  creditors.  But 
there  may  also  be  fraud  as  to  the  marital  rights  of  an  intended  spouse 
which  equity  will  remedy  where  grantee  is  a  volunteer  or  had  knowl- 
edge of  the  fraud.  Allen  v.  Allen,  213  Mass.  29.  Chase  v.  Phil- 
lips, 208  Mass.  245. 


104  EQUITY  AND   ITS   REMEDIES 

present    Massachusetts    statute    to    this 
effect)." 

Mass.  Rev.  Laws,  ch.  153,  sec.  3  (which 
excludes  from  valid  gifts  of  husband  to 
wife,26  those  in  fraud  of  creditors). 

Shepherd  v.  Shepherd,  196  Mass.  179 
(discussion  of  when  a  wife  is  a  creditor 
of  her  husband,  so  as  to  get  deed  set  aside). 

Present  statutes  usually  include  transfers  of  any 
"property,  right,  title  or  interest,  real  or  personal." 
Such  language  covers  choses  in  action  and  mortgages. 

Drake  v.  Rice,  130  Mass.  410  (assignment 
of  interest  in  account). 

Gragg  v.  Martin,  12  Allen  498  (assignment  of 
future  wages). 

King  v.  Cram,  185  Mass.  103  (assignment 
of  life  insurance). 

York  v.  Flaherty,  210  Mass.  35  (payment 
of  life  insurance  premiums  and  assign- 
ment of  policies)27. 

At  common  law  one  might  prefer  a  single  creditor 
by  satisfying  his  claim  in  full,  and  the  act  was  not 
fraudulent  as  to  other  creditors.  Under  insolvency 
and  bankruptcy  laws  transfers  for  such  purposes  may 
usually  be  set  aside  if  made  within  a  given  period. 

The  remedy  in  equity,28  to  reach  property  con- 


25  This  statute  has  reference  not  only  to  fraudulent  transfers,  but 
also  to  purchases  directly  in  the  name  of  another,  with  fraudulent 
intent. 

26  Valid  to  extent  of  $2000  if  wearing  apparel,  articles  of  personal 
ornament,  and  articles  necessary  for  her  personal  use. 

27  See  St.  1907,  ch.  576,  sec.  73,  protecting  policies  payable  to 
wife.    See  also  Eldredge  v.  Mutual  Life  Ins.  Co.,  217  Mass.  444. 

28  At  law,- the  debtor  may  be  sued  and  the  property  fraudulently 
conveyed  specially  attached,  under  Mass.  Rev.  Laws,  ch.  167, 
sees.  38-65.  As  the  question  of  fraud  is  only  settled  after  a  writ 
of  entry,  this  method  is  rather  cumbersome  compared  with  the 
equitable  remedy. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  105 

veyed  in  fraud  of  creditors,  is  a  bill  to  reach  and 
apply  an  equitable  interest,29  brought  by  a  creditor 
(with  the  debtor  and  his  grantee  as  defendants), 
or  a  bill  for  cancellation  and  reconveyance  by  the 
debtor's  executor,30  administrator  or  bankruptcy 
trustee. 

Crompton  v.  Anthony,  13  Allen  33  (by  sin- 
gle creditor). 

Busiere  v.  Reilly,  189  Mass.  518  (by  a 
devisee  to  whom  the  right  to  sue  was 
devised). 

Coggan  v.  Ward,  215  Mass.  13  (by  trustee 
in  bankruptcy  to  recover  chattels  alleged 
to  have  been  fraudulently  transferred). 

The  transfers  voidable  under  modern  statutes  are 
those  made  with  an  intent  to  defraud  his  creditors, 
by  one  actually  insolvent,  heavily  in  debt,  or  about 
to  undertake  a  hazardous  business,  or  by  one  who 
anticipates  suit  because  of  a  present  possible  liability. 

Parkman  v.  Welch,  19  Pick.  231  (heavily 
in  debt). 

Neuberger  v.  Klein,  134  N.  Y.  35  (about  to 
undertake  hazardous  business). 

Livermore  v.  Boutelle,  11  Gray  217  (threat- 
ened divorce). 

Shepherd  v.  Shepherd,  196  Mass.  179 
(threatened  separate  support  proceedings). 

Leonard  v.  Bolton,  153  Mass.  428  (threat- 
ened bastardy  proceedings). 

Benson  v.  Benson,  70  Md.  253  (by  a  bank- 
rupt). 


29  Such  a  bill  need  not  be  for  the  benefit  of  other  creditors.  Sillo- 
way  v.  Columbia  Ins.  Co.,  8  Gray  199. 

10  An  executor  or  administrator  ought,  before  bringing  bill,  to  get 
a  license  of  probate  court  to  sell.  Stockwell  v.  Shalit,  204  Mass. 
270.  If  the  executor  himself  is  the  fraudulent  grantee,  the  creditor 
may  have  him  removed.  Fourth  Nat'l  Bank  v.  Mead,  214  Mass. 
549.    But  this  is  not  now  necessary,  Mass.  St.  1915,  ch.  151,  sec.  7. 


106  EQUITY  AND  ITS   REMEDIES 

In  such  cases,  ordinarily  the  grantee  has  paid  no 
consideration  but  holds  on  a  secret  trust  to  reconvey. 
But  even  if  a  grantee  has  paid  full  consideration,  if  he 
participates  in  a  fraudulent  intent  of  the  grantor,  the 
sale  may  be  set  aside. 

Wadsworth  v.  Williams,   100  Mass.   126. 

But  if  the  grantee  has  given  a  fair  consideration 
and,  has  no  knowledge31  of  the  fraudulent  intent  of 
the  grantor  at  the  time  of  his  purchase,  a  transfer  to 
him  will  not  ordinarily  be  set  aside." 

Pierce  v.  O'Brien,  189  Mass.  58  (and  cases 
therein  cited). 

Holmes  v.  Winchester,  133  Mass.  140 
(wife's  release  of  dower  is  a  valuable  con- 
sideration. Transfer  of  stock  good,  not- 
withstanding her  knowledge  at  time  oj 
transfer). 

If  there  is  actual  fraudulent  intent  known  to  gran- 
tee, subsequent  as  well  as  pre-existing  creditors  may 
avoid  the  transfer  and  so  may  the  grantor's  bank- 
ruptcy trustee  or  assignee  in  insolvency. 

Day  v.  Cooley,  118  Mass.  524,  (and  cases 
therein  cited).33 

Even  transfers  without  consideration,  of  real  or 
personal  property,  when  made  without  fraudulent 
intent,  are  good  as  against  all  but  creditors  existing 
at  the  time;  and  such  a  conveyance  "especially  if 
made  on  the  meritorious  consideration  of  blood,  or 
affection  for  children,  or  as  a  settlement  to  a  wife, 


81  Knowledge  of  fraud,  and  not  "reasonable  cause  to  have  knowl- 
edge," is  required  in  Massachusetts. 

82  But  in  many  states  sales  of  merchandise  in  bulk,  not  in  the  usual 
course  of  trade,  is  made  by  statutes  fraudulent,  if  without  notice  to 
creditors,  Mass.  St.  1903,  ch.  415. 

33  Quaere.  For  how  long  does  this  right  of  subsequent  creditors 
persist? 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  107 

is  not  as  a  matter  of  law  fraudulent."  Deep  indebted- 
ness may  furnish  strong  evidence  of  fraud,  but  the 
question  is  one  of  fact  for  the  jury. 

Matthews  v.  Thompson,  186  Mass.  14  (rule 
stated). 

Prewit  v.  Wilson,  103  U.  S.  22  (promise  of 
marriage  on  adequate  consideration  where 
wife  ignorant  of  fraudulent  intent,  at 
time  of  ante-nuptial  settlement). 

Huntress  v.  Hanley,  195  Mass.  236  (promise 
of  marriage  adequate  consideration,  con- 
veyance being  made  before  marriage). 

Deshon  v.  Wood,  148  Mass.  132  (promise 
before  marriage  to  transfer  after,34  in- 
adequate, where  actual  fraudulent  intent, 
though  wife  ignorant). 

Clark  v.  McMahon,  170  Mass.  91  (in  absence 
of  fraud,  voluntary  conveyance  to  wife 
through  third  person  not  void  as  to  cred- 
itors). 

Chase  v.  Phillips,  208  Mass.  245  (conveyance 
held  not  in  fraud  of  future  husband's 
marital  rights). 

Briggs  v.  Sanford,  219  Mass.  572  (convey- 
ance to  wife  in  satisfaction  of  equitable 
obligation  not  set  aside  for  creditors). 

Under  certain  circumstances,  a  conveyance  by  one 
insolvent,  with  no  consideration  moving  from  the 
transferee  may  not  be  fraudulent. 

Bailey  v.  Wood,  211  Mass.  37  (execution  of 
an  oral  trust  imposed  by  a  decedent  from 
whom  property  was  inherited). 


84  In  this  case,  the  promise  was  oral  and  was  not  executed  until 
after  marriage.    It  was  not  enforceable  as  an  antenuptial  contract. 


108  EQUITY  AND   ITS   REMEDIES 

Hutchins  v.Mead,36  220  Mass.  348  (conveyance 
to  wife  in  satisfaction  of  equitable  obli- 
gation). 

A  conveyance  fraudulent  as  against  creditors  is 
good  as  between  the  parties.  If  the  plaintiff  can 
show  a  'prima  facie  right  to  recover  (as,  for  example, 
by  reason  of  a  resulting  trust  in  his  favor,  or  a  con- 
tract to  reconvey)  without  developing  the  fraud  in 
the  transaction,  the  court  will  not  permit  the  de- 
fendant to  set  up  his  own  fraud,  or  the  plaintiff's 
fraud  against  a  third  person,  as  a  defense. 

Lufkin  v.  Jakeman,  188  Mass.  528  (resulting 

trust). 
Taft  v.  Henry,  219  Mass.  78  (contract  to 

convey). 
Schmidt  v.  Schmidt,  216  Mass.  572. 

At  common  law  a  conveyance  of  property  to  a 
creditor  in  satisfaction  of  a  debt,  made  by  one  who 
was  insolvent,  was  not  fraudulent  as  to  other  credit- 
ors. Insolvency  and  bankruptcy  laws,  however, 
make  such  a  transfer  a  preierence,  and  fraudulent, 
if  within  a  given  period  before  adjudication. 

Stockwell  v.  Shalit,  204  Mass.  270. 

U.  S.  Bankruptcy  Act  1898,  sec.  60. 


85  The  effect  of  certain  transactions  between  husband  and  wife  are 
thus  summarized  in  Hutchins  v.  Mead,  220  Mass.  348  by  Rugg,  J., 
"A  husband  may  hold  the  title  to  property  in  his  own  name,  which 
in  truth  belongs  to  his  wife,  upon  a  valid  trust  for  her  benefit.  Prop- 
erty originally  belonging  to  her,  which  she  has  handed  over  to  him 
and  which  has  been  kept  by  him  for  a  considerable  period,  may  be 
found  to  constitute  such  a  trust.  If  she  has  permitted  him  to  hold 
it  so  that  he  has  been  enabled  to  and  has  in  fact  gained  credit  on 
the  strength  of  his  apparent  ownership  thereof,  she  may  be  estopped 
to  claim  it.  Where  the  husband  has  recognized  the  existence  of 
the  trust  and  has  discharged  his  fiduciary  obligation  by  transferring 
the  corpus  of  the  trust  to  his  wife,  there  is  a  sufficient  consideration 
to  support  the  conveyance.  In  a  seDse  the  trust  has  been  executed 
and  it  is  not  necessary  to  imagine  whether  it  might  have  been  en- 
forced at  the  suit  of  the  wife." 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  109 

d.    Transactions  void  as  against  public  policy. 

There  are  certain  other  transactions  which  from 
their  very  nature  are  fraudulent  as  to  third  persons 
and  therefore  void  as  against  public  policy. 

Palmbaum  v.  Magulsky,  217  Mass.  306. 

3.    Remedies  in  Fraud. 

Cases  involving  fraud  are  so  numerous  that  the 
choice  of  a  particular  remedy  is  often  of  the  highest 
importance.     Some  of  the  more  common  follow: 

a.    Remedies  at  Law. 

1.  Action  of  tort  for  deceit. 

Huntress  v.  Blodgett,  206  Mass.  318. 
Brackett  v.  Perry,  201  Mass.  502. 

2.  Action  of  tort  for  deceit,  to  recover  consider- 
ation paid,  accompanied  by  tender  back  (rescission 
of  an  executed  contract). 

Nash  v.  Minn.  Title  Ins.  &  Trust  Co., 
163  Mass.  574. 

3.  Action  of  contract,  for  fraudulent  violation  of 
agreement. 

Tuttle  v.  Batchelder  &  Lincoln  Co.,  170  Mass. 
315  (fraudulent  violation  of  agreement  to 
appraise  stock). 

4.  Action  of  contract  against  a  debtor,  attaching 
by  means  of  general  or  special  attachment  (in  the 
case  of  real  estate)  or  by  means  of  trustee  process 
(in  the  case  of  personalty)  property  fraudulently  con- 
veyed to  a  third  person. 

Mass.    Rev.    Laws,    ch.    167,    sees.    38-65 

(attachment). 
Mass.  Rev.  Laws,  ch.  189  (trustee  process). 

5.  Action  of  contract  to  recover  money  obtained 
by  fraud. 


110  EQUITY  AND   ITS   REMEDIES 

Trecy  v.  Jefts,  149  Mass.  211. 
Hagar  v.  Norton,  188  Mass.  47. 

6.  Writ  of  entry,  after  avoidance  of  a  conveyance 
(or  foreclosure)  for  fraud. 

Marvel  v.  Cobb,  200  Mass.  293  (the  proper 
remedy  for  one  out  of  possession). 

7.  By  way  of  defense  (legal  or  equitable)  to 
actions  at  law. 

Lima  v.  Campbell,  219  Mass.  253  (discussion 

of  fraud  as  legal  defence). 
Dexter  v.  Fuller,  217  Mass.  219. 
Harvey    v.    Squire,    217    Mass.    411    (but 

the  fraud  must  have  been  part  of  the 

same  transaction  and  have  induced  the 

contract). 

8.  Action  of  tort  for  personal  injuries  (in  which 
case  a  release  obtained  by  defendant,  who  was  in  a 
fiduciary  relation  to  plaintiff,  may  not  avail  de- 
fendant). 

Butler  v.  Gleason,  214  Mass.  248. 

b.    Remedies  in  Equity. 

1.  Reformation  of  a  deed  or  other  instrument  (as 
in  case  of  fraudulent  alteration). 

Niles  v.  Graham,  181  Mass.  41. 

2.  Cancellation36  of  an  executory  contract. 

Fuller  v.  Percival,  126  Mass.  381  (note). 

3.  Rescission  of  an  executed  contract  (with  or 
without  damages). 

Cook  v.  Scheffreen,  215  Mass.  444  (rescission 
of  exchange  of  property). 


86  See  the  interesting  decree  in  Rice  v.  Merrill,  215  Mass.  419, 
under  which  decree  a  trust  was  created  for  the  benefit  of  the  plain- 
tiff, an  aged  person  who  brought  a  bill  to  set  aside  a  deed  for  support. 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  111 

Hill  v.  Hall,  191  Mass.  253. 

O'Shea  v.  Vaughn,  201  Mass.  412  (giving 
incidents  of  rescission). 

Murphy  v.  Robinson,  214  Mass.  585  (giving 
various  incidents  of  relief  by  cancellation 
of  deeds). 

Stewart  v.  Joyce,  201  Mass.  301;  s.  c.  205 
Mass.  371  (rescission,  with  rule  for  dam- 
ages). 

4.  Compensation  in  damages. 

Old  Dominion  Copper  Co.  v.  Bigelow,  188 
Mass.  at  329  (violation  of  duty  on  the 
part  of  one  in  a  fiduciary  capacity,  an 
"equitable  tort"). 

Brown  v.  Statter,  206  Mass.  119  (compensa- 
tion for  a  partial  failure  of  consideration, 
through  fraud). 

5.  Specific  redelivery  (with  execution  of  any  papers 
necessary  to  revest  legal  title)  of  property  fraudulently 
conveyed  or  detained  that  cannot  be  replevied,  or  of 
money  or  property  obtained  by  undue  influence. 

Batty  v.   Greene,   206   Mass.   561    (money 

obtained  from  man  by  woman  fraudulently 

married  to  him). 
Gibbens  v.  Peeler,  8  Pick.  254. 
Holden  v.  Hoyt,  134  Mass.  181  (mortgage 

and  note). 
Porter   v.   Stuart,    203   Mass.   46    (lodging 

house  furniture  obtained  by  agent's  fraud). 
Stone  v.  Sargent,  220  Mass.  445  (insurance 

policy). 

6.  Injunctions  against  enforcement  of  obligations 
obtained  by  fraud;  and  temporary  injunctions  to 
prevent  changes  in  subject  matter  during  litigation. 

Metcalf  v.  Williams,  104  U.  S.  93  (against 
enforcing  judgment). 


112  EQUITY  AND   ITS   REMEDIES 

Brown  v.  Statter,  206  Mass.  119  (against 
collecting  notes,  etc.). 

7.  Redemption  from  fraudulent  foreclosure. 

Clark  v.  Storey,  208  Mass.  36  (defendants 
chargeable  with  net  profits;  but  allowed 
compensation  for  services). 

8.  By  way  of  defense  to  specific  performance. 

Features  of  the  Equitable  Remedies. 

The  right  to  sue  for  fraud  is  not  assignable  at  law 
or  in  equity. 

United  Zinc  Companies  v.  Harwood,  216 
Mass.  474. 

But  rights  of  action  in  equity  to  set  aside  instru- 
ments obtained  by  fraud  are  apparently  assignable 
and  pass  by  will. 

Busiere  v.  Reilly,  189  Mass.  518. 

There  is  a  presumption  that  men  act  honestly. 
When,  therefore,  fraud  is  claimed,  it  must  be  alleged 
in  detail  and  proven. 

Barron  v.  International  Trust  Co.,  184  Mass. 
440. 

A  court  of  equity  will  not  aid  one  who  is  guilty  of 
laches. 

Marvel  v.  Cobb,  200  Mass.  293. 

A  court  of  equity  will  refuse  to  act  when  its  aid  is 
sought  by  one  who  is  a  party  to  a  fraud,  to  secure  his 
share  or  the  whole,  of  a  fund  created  by  that  fraud, 
if  his  right  to  equitable  relief  is  based  upon  the  fraud. 

Wilson  v.  Jackson,  204  Mass.  432. 
Harvey  v.  Varney,  98  Mass.  118. 

An  action  in  equity  to  follow  trust  property  pro- 
cured by  fraud  does  not  fail  on  the  death  of  the 


SOME  SPECIFIC  GROUNDS  FOR  RELIEF  113 


defendant,  although  an  action  of  tort  for  fraud  fails 
under  such  circumstances. 

Love  joy  v.  Bailey,  214  Mass.  134. 

In  a  case  of  constructive  fraud,  the  Statute  of 
Frauds  has  no  application. 

Mass.  Rev.  Laws,  ch.  147,  sec.  1. 
Lurie  v.  Pinanski,  215  Mass.  229. 

In  the  absence  of  fraud,  nothing  less  than  conduct 
that  amounts  to  an  abrogation  of  the  contract  or 
goes  to  the  essence  of  it,  or  takes  away  its  foundation, 
can  be  made  ground  for  rescission  by  the  other  party. 

Runkle  v.  Burrage,  202  Mass.  89. 

In  certain  cases  one  may  have  the  benefit  of  sub- 
rogation though  he  has  been  guilty  of  constructive 
fraud. 

Adams  v.  Young,  200  Mass.  588. 

Where  a  bill  is  brought  to  rescind  a  contract  for 
fraud  and  no  fraud  is  found,  the  bill  will  not  be  re- 
tained to  modify  the  contract.  Equity  will  not 
construct  a  new  agreement  for  the  parties. 

Revere  v.  Revere  Water  Co.,  218  Mass.  161. 

The  effect  of  a  rescission  of  a  conveyance  obtained 
by  fraud  is  to  restore  to  the  defendant  a  right  of 
action  he  gave  up  in  consideration  of  the  conveyance. 

Lima  v.  Campbell,  219  Mass.  253. 

Fraud  in  the  making  of  a  contract  may  present  a 
defence  to  an  action  on  it  where  antecedent  fraud 
would  not  (because  merged  in  the  contract). 

Colonial  Development  Co.  v.  Bragdon,  219 
Mass  170. 

A  beneficiary  under  an  oral  trust  may  compel  one 
who  has  fraudulently  obtained  title  from  the  trustee 


114  EQUITY  AND  ITS   REMEDIES 


to  restore  it.  That  there  is  no  trust  within  the 
Statute  of  Frauds  is  no  defense  to  the  person  thus 
fraudulently  acting.  But  the  trustee  may  set  up  such 
defense. 

Eeardon  v.  Hear  don,  219  Mass.  594. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  115 


CHAPTER  VII. 
SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

A.  Affirmative  Contracts  Generally. 

a.  Contracts  about  Land. 

b.  Contracts  about  Chattels. 

c.  Stocks  and  Bonds. 

d.  Agreements    to    Arbitrate    and    to    Give 

Options. 

e.  Contracts   Involving  the   Performance  of 

Labor. 

B.  Negative  Contracts  Generally. 

a.  Involving  Personal  Service. 

b.  Limiting  the  Use  of  Property. 

c.  Agreement  not  to  Compete: 

1.  Express  agreements; 

2.  Agreements  implied  from  sale  of  good 

will. 

C.  Relief  for  and  against  Third  Persons. 

a.  Legal  Easements. 

b.  Certain  Covenants  Running  with  Land. 

c.  Restrictions  or  Equitable  Easements. 

D.  Statute  of  Frauds  —  Part  Performance. 

E.  Partial  Performance. 

F.  Time  the  Essence  of  the  Contract. 

G.  Marketable  Title. 
H.  Mutuality. 

I.    Necessity  and  Adequacy  of  Consideration. 

J.    Sundry    Defenses    and    Incidents    of    the 
Remedy. 


116  EQUITY  AND  ITS  REMEDIES 

"Specific  performance  is  a  judicial  order  that  a 
legal  contract  be  carried  into  effect." 

The  remedy  is  strictly  an  equitable  one.1  At 
common  law  a  party  to  a  contract  has  his  option  to 
perform  or  to  pay  damages. 

Ames,  37-38,  note  (a  history  of  the  rise  of 
the  remedy). 

The  right  to  specific  performance  of  an  agreement 
is  not  absolute  but  rests  in  the  discretion  of  the 
court,2  to  be  exercised  upon  equitable  considerations 
and  in  view  of  all  the  circumstances  of  the  case. 

Banaghan  v.  Malaney,  200  Mass.  46  (superior 
mental  ability  of  plaintiff,  though  not 
sufficient  fraud  to  avoid  contract). 

Curran  v.  Holyoke  Water  Power  Co.,  116 
Mass.  90  (rights  of  third  person  are  an 
equitable  consideration). 

Chute  v.  Quincy,  156  Mass.  189  (defendant 
had  a  contract  more  onerous  than  he 
supposed). 

Richardson  Shoe  Mach.  Co.  v.  Essex  Mach. 
Co.,  207  Mass.  219  (conditions  changed 
so  that  to  enforce  contract  would  work 
very  result  contract  was  intended  to 
prevent). 


1  The  penalty  for  disobedience  is,  of  course,  punishment  for  con- 
tempt. Under  certain  conditions  (see  Mass.  St.  1910,  ch.  376) 
the  court  may  appoint  a  master  to  convey  property  under  decree. 
Eastern  Bridge  etc.  Co.  v.  Worcester  etc.,  216  Mass.  426. 

2  Refusal  of  specific  performance  does  not  prevent  a  plaintiff 
suing  at  law  for  his  damages  and  there  proving  ground  on  which 
decree  was  entered.  The  matter  is  not  res  judicata.  Though  refus- 
ing specific  performance,'  an  equity  court  may  assess  damages, 
where  there  is  no  remedy  at  law  (as  in  Jackson  v.  Stevenson,  156 
Mass.  496),  but  this  is  discretionary,  not  ex  debito  justiciae.  It  may 
allow  the  plaintiff  to  amend  to  an  action  at  law  (as  in  Merrill  v. 
Beckwith,  168  Mass.  72)  or  may  give  him  an  election  to  proceed  for 
damages  at  law  or  in  equity  (as  in  Levi  v.  Worcester  Con.  St.  Ry., 
193  Mass.  116).  Institution  for  Savings,  etc.  v.  Puffer,  201  Mass. 
41.     Banaghan  v.  Malaney,  200  Mass.  46. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  117 

Mansfield  v.  Sherman,  81  Maine  365;  Ames 

385. 
Wentworth  v.  Manhattan,  216  Mass.  374. 
Nickerson  v.  Bridges,   216  Mass.  416   (see 

infra). 

Specific  performance  is  decreed 

1.  When  by  reason  of  the  specific  subject  matter 
of  the  contract  and  the  impossibility  of  obtaining  in 
the  open  market  its  exact  counterpart,  damages  will 
not  be  an  adequate  compensation  for  its  breach. 

2.  When  by  reason  of  special  features  making  it 
impossible  to  arrive  at  a  legal  measure  of  damages, 
such  compensation  is  impracticable.3 

Pomeroy,  sec.  1401. 

Butterick  Pub.  Co.  v.  Fisher,  203  Mass.  122. 

A.   Affirmative  Contracts  Generally. 

a.    Contracts  about  Land.4 

In  the  view  of  a  court  of  equity  a  specific  parcel 
of  land  has  no  duplicate.  It  is  unique.  An  unob- 
jectionable, valid,  wiitten,  contract  to  convey  an 
interest  in  land  is  therefore  enforced  as  a  matter  of 
course  in  favor  of  vendor  or  vendee.  This  rule  is 
not  altered  by  the  fact  that  similar  land  at  a  similar 
price,  in  the  same  neighborhood,  is  available. 

Pomeroy  on  Specific  Performance,  sees.  9-10. 
Ensign  v.  Kellogg,  4  Pick.  1. 
Squire  v.  Learned,   196  Mass.  134  (bill  by 
lessee's  administrator  to  enforce  agreement 
to  renew  lease). 


8  In  the  development  of  the  subject  herein,  little  attention  is  paid 
to  the  distinction  herein  suggested.  Many  of  the  examples  given 
may  as  readily  be  referred  to  the  one  proposition  as  to  the  other. 

4  See  specific  phases  of  the  enforcements  of  land  contracts  under 
the  headings  (infra)  of  Agreements  to  Arbitrate  and  to  Give  Options, 
The  Statute  of  Frauds  —  Part  Performance,  Partial  Performance, 
Marketable  Title,  and  Mutuality. 


118  EQUITY  AND   ITS   REMEDIES 

Staples  v.  Mullen,  196  Mass.  132  (enforce- 
ment by  agreed  vendor). 

Galligan  v.  McDonald,  200  Mass.  299  (en- 
forcement by  agreed  vendor). 

But  if  the  contract  has  been  executed  by  the  vendor 
so  that  nothing  remains  to  be  done  except  for  the 
vendee  to  pay  money,  then  the  remedy  at  law  is 
adequate,  and  the  vendor  may  recover  the  purchase 
price,  unless  the  Statute  of  Frauds  is  a  good  defence 
on  the  facts,  in  which  case  the  vendor  may  recover 
the  value  of  the  property. 

Jones  v.  Newhall,  115  Mass.  244.6 

Kelley  v.  Thompson,   181  Mass.   122  (rule 

where  contract  was  oral  and  within  the 

statute). 

b.    Contracts  about  Chattels. 

The  ordinary  chattel  is  not  unique  in  the  sense 
that  a  parcel  of  land  is.  If  one  may  obtain  its 
duplicate  in  the  open  market,  a  contract  concerning 
the  chattel  will  not  be  specifically  enforced. 

Fothergill  v.  Rowland,   L.   R.    17  Eq.   132; 

Ames  111  (contract  to  sell  all  coal  mined 

for  five  years). 
Jones  v.  Newhall,  115  Mass.  244  (dictum). 

But  specific  performance  of  a  contract  relating  to 
personal  property  may  be  enforced,  by  vendor  or 
vendee,  if  the  property  is  unique.6 

Lowther  v.  Lord    Lowther,    13    Vesey,  95 

(a  Titian). 
Adams  v.  Messinger,  147  Mass.  185;  Ames 


5  This  case  was  decided  before  Massachusetts  court  had  full  equity 
jurisdiction.     Under  the  facts  there  set  forth,  there  would  doubt- 
less be  equitable  relief  today.     See  Staples  v.  Mullen,  196  Mass.  132. 
6  See  page  119  for  note  6 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  119 

50  (contract  (a)  to  sell  patented  article; 

(b)  to  assign  patent). 
Cogent  v.  Gibson,  33  Beavan,  557;  Ames  56 

(specific  performance  obtained  by  vendor). 
Roberts    v.    Cambridge,     164    Mass.     176 

(agreement  to  furnish  water). 
Adder  ley  v.  Dixon,  1  Simons  &  Stuart  607; 

Ames  58  (to  sell  a  claim  of  uncertain  value) 
Herbst  v.  Fidelia,  etc.   Corp'n,  218  Mass. 

181  (agreement  to  return  a  prize  cup  if 

not  entitled  to  it). 
Howe  v.  Watson,  179  Mass.  30  (agreement 

to  leave  property  by  will). 
French  v.  Boston  Nat'l  Bank,   179  Mass. 

404  (agreement  to  re-deliver  pledged  stock) 

So  an  agreement  to  compromise  a  will  may  ba 
enforced  if  all  parties  were  sui  juris  and  assented  to 
the  compromise. 

Parker  v.  N.  E.  Trust  Co.,  215  Mass.  226 
(giving  further  requisites  of  Massachusetts 
statutory  compromise). 
Blount  v.  Wheeler,  199  Mass.  330  (although 
property  was  personalty). 


•  It  is  not  uncommon  to  cite  under  this  head  cases  which  are  really 
specific  reparation  of  a  tort,  rather  than  performance  of  a  con- 
tract. In  the  case  of  reparation  of  a  tort  the  jurisdiction  may  arise 
from  the  conversion  of  a  chattel  so  unique  that  nothing  short  of 
the  return  of  the  chattel  itself  will  afford  adequate  relief.  This 
remedy  has  been  afforded  in  cases  involving  the  conversion  of  deeds, 
papers  of  a  society,  heirlooms,  securities  of  an  estate,  slaves,  etc. 
Duke  of  Somerset  v.  Cookson,  2  P.  Wins.  390;  Ames,  39;  and  num- 
erous cases  in  note,  Ames,  39.  This  remedy,  sometimes  called 
specific  delivery  or  equitable  replevin,  has  been  made  in  Massachu- 
setts broad  enough  to  allow  the  recovery  of  all  articles  (whether 
rare  or  not)  "that  have  been  taken  or  detained  from  the  owner  and 
so  secreted  or  withheld  that  they  cannot  be  replevied."  Rev.  Laws, 
ch.  159,  sec.  3,  cl.  1;  Strickland  v.  Fitzgerald,  7  Cush.  530  (horse); 
Maxham  v.  Day,  16  Gray  213  (jewelry  worn  on  the  person);  Gaff 
v.  Cornwallis,  219  Mass.  226  (a  specific  legacy). 


120  EQUITY  AND  ITS   REMEDIES 

So  an  agreement  of  one  partner  to  sell  his  interest 
in  his  business  for  a  fixed  sum  to  the  other  partner 
may  be  enforced. 

Murphy  v.  Murphy,  217  Mass.  233  (liquor 
saloon;  bill  against  deceased  partner's 
administrator). 

If  the  failure  of  a  party  who  has  agreed  to  sell  an 
article  of  which  there  is  only  a  limited  supply  (although 
the  article  itself  be  not  unique)  would  result  in 
irreparable  damage,  and  perhaps  utter  destruction 
of  the  business  of  the  agreed  vendee,  damages  at 
law  may  not  be  adequate  and  specific  performance 
may  be  had. 

Gloucester  Isinglass,  etc.  Co.  v.  Russia 
Cement  Co.,  154  Mass.  92  (agreement  to 
sell  fish  skins). 

Florence   Sewing   Machine   Co.   v.   Grover, 

etc.  Co.,  110  Mass.  1. 
Equitable  Gas  Light  Co.  v.  Baltimore  Coal 

Tar  Co.,  63  Md.  285  (agreement  to  sell 

coal  tar). 

But  even  though  the  subject  matter  be  unique, 
money  damages  at  law  are  adequate  if  the  original 
agreement  has  set  a  value  on  the  property. 

Dowling  v.  Betjemann,  2  Johnson  &  Hem- 
ming 544;  Ames  40  (agreement  as  to 
painting,  which  set  value  at  which  pic- 
ture could  be  purchased). 

In  some  cases  where  there  would  ordinarily  be  no 
specific  performance,  it  has  been  decreed  when  the 
plaintiff  has  paid  full  consideration  but  the  insolvency 
of  the  other  party  has  made  a  remedy  at  law  inade- 
quate. 

Clark  v.   Flint,   22  Pick.   231   (against  the 

Intended  vendor's  assignees). 
Parker  v.  Garrison,  61  111.  250;  Ames  44. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  121 

Hamilton  v.  St.  Louis  Bank,  3  Dillon  230 
(against  assignee  in  bankruptcy  to  recover 
six  bonds). 

Holmes  v.  Winchester,  133  Mass.  140 
(dictum). 

The  remedy  at  law  may  be  equally  inadequate, 
where  the  plaintiff  has  loaned  money  to  the  defendant 
upon  his  promise  to  give  certain  security.7  "An 
agreement  to  give  a  mortgage  is  a  mortgage  in  equity." 

Hermann  v.  Hodges,  L.  R.  16  Eq.  18;  Ames 

61. 
Westall  v.  Wood,  212  Mass.  540. 

c.  Stocks  and  Bonds. 

A  contract  for  the  sale  of  stocks  or  bonds  commonly 
dealt  with  in  the  market,  in  the  absence  of  unusual 
circumstances,  will  not  be  enforced.  The  subject 
matter  is  not  unique. 

Duncuft  v.  Albrecht,  12  Simons  189;  Ames 
55. 

But  such  a  contract  will  be  specifically  enforced 
in  the  case  of  stock  if  the  shares  are  such  as  are  not 
readily  procurable  in  the  market. 

Adams  v.  Messinger,  147  Mass.  185;  Ames 
50. 

New  England  Trust  Co.  v.  Abbott,  162  Mass. 
148  (agreement,  indorsed  on  share  of 
stock,  that  in  certain  contingency  stock 
should  be  transferred  to  corporation, 
enforced). 

d.  Agreements  to  Arbitrate  and  to  Give  Options. 
An  agreement  to  arbitrate  an  entire  controversy, 


7  But  an  agreement  to  lend  or  borrow  money  will  not  be  enforced. 
Rogers  v.  Challis,  27  Beavan  175;  Ames  61. 


122  EQUITY  AND  ITS  REMEDIES 

except  an  agreement  made  in  conformity  with  some 
statute,8  is  not  enforceable.  There  is  no  action  at 
law  for  its  breach  and  no  enforcement  of  it  in  equity. 
The  enforcement  of  such  an  agreement  would  tend 
to  oust  the  courts  of  their  jurisdiction  of  the  subject 
matter. 

Wood  v.  Humphrey,  114  Mass.  185  (cancel- 
lation of  royalty  contract  despite  plain- 
tiff's failure  to  submit  to  arbitration). 

Vass  v.  Wales,  129  Mass.  38  (as  to  repairs  in 

lease). 
Pearl  v.  Harris,  121  Mass.  390  (agreement  in 

partnership  papers). 

White  v.  Middlesex  R.  R.,  135  Mass.  216 
(corporation  officer  sole  judge  of  forfeiture 
of  deposit.     Void). 

Miles  v.  Schmidt,9  168  Mass.  339  (equity). 

But  an  agreement  that  certain  minor  questions 
shall  be  submitted  to  arbitration,  though  not  enforce- 
able in  equity,  is  not  invalid.  If  made  a  condition 
precedent,  no  suit  will  lie  until  an  offer  to  submit  is 
first  made.  If  not  a  condition  precedent,  it  may  be 
revoked  before  an  award.10 

Lamson  Consolidated  etc.  Co.  v.  Prudential 
F.  Ins.  Co.,  171  Mass.  433  (arbitration 
clause  in  standard  policy,  a  condition 
precedent). 

But  see  Reed  v.  Washington  Ins.  Co.,  138 
Mass.  572  (old  form  in  policy.  Not  a 
condition  precedent.     Revocation  by  suit) . 


8  See  Mass.  Rev.  Laws,  ch.  194,  for  a  statutory  method. 

9  The  court  in  this  case  avers  that  if  the  question  were  then  a 
new  one  (1896)  no  objection  would  be  found  to  permitting  parties 
to  select  their  own  tribunals. 

10  In  case  of  revocation  of  a  valid  agreement  to  submit  to  arbi- 
tration, the  party  aggrieved  by  the  revocation  may  recover  damages 
therefor.    Pond  v.  Harris,  113  Mass.  114. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  123 

But  when  an  award  under  an  agreement  to  arbi- 
trate has  been  made,  equity  may  be  invoked  to  en- 
force specific  performance  of  it  in  a  proper  case. 

Hall  v.  Hardy,  3  P.  Wms.  187;  Ames  65. 
Penniman  v.  Rodman,  13  Met.  382  (award 

ordering  conveyance). 
Bartlett  v.  Slater,   182  Mass.  208  (specific 
performance  of  statutory  compromise  of  a 
will). 
Howe  v.  Nickerson,   14  Allen  400  (money 

award;  remedy  at  law  adequate). 
Duffy  v.  Hogan,  203  Mass.  397  (compromise 
of  a  will). 

A  contract  to  buy  or  sell  at  a  price  to  be  fixed  by 
arbitration  will  not  be  specifically  enforced,  unless 
the  price  has  actually  been  fixed. 

Agar  v.  Macklew,  2  Simons  &  Stuart,  418; 

Ames  67. 
N.  E.  Trust  Co.  v.  Abbott,  162  Mass.  148 

(price  fixed.     Enforced) . 
Palmer  v.  Clark,  106  Mass.  373. 
Miles  v.  Schmidt,  168  Mass.  339. 

A  contract  to  give  the  plaintiff  an  option  on  cer- 
tain property  in  case  the  defendant  wishes  to  sell, 
is  not  enforceable. 

Fogg  v.  Price,  145  Mass.  513  (in  which  no 

price  was  named). 
Chandler    v.    McDonald-Weber    Co.,    215 

Mass.  365. 
But    see    Manchester    Ship    Canal    Co.    v. 
Manchester  Co.,  L.  R.   (1901)  2  Ch.  37 
(an  injunction  against  selling  until  offered 
to  plaintiff). 

e.    Contracts  Involving  the  Performance  of  Labor. 
Contracts  to  do  continuous  acts  or  involving  con- 
tinuous employment  of  people  and  oversight  of  the 


124  EQUITY  AND  ITS   REMEDIES 

court  are  not  ordinarily  enforced  iD  equity.11 

Powell  Duffryn  Coal  Co.  v.  Taff  Vale  Ry. 
Co.,  L.  R.  9Ch.  App.  331;  Ames  79  (re- 
fusal to  order  a  railway  to  keep  its  con- 
tract to  operate  signals  for  the  plaintiff). 

Adams  v.  Messinger,  147  Mass.  185;  Ames 
50  (principle  discussed,  but  performance 
ordered). 

Berliner  Co.  v.  Seaman,  110  Fed.  Rep.  30 
(contract  for  agency  of  machine  for  sev- 
eral years.     No  performance). 

Ryan  v.  Mutual  Ass'n,  (1893)  1  Ch.  116 
(contract  by  landlord  to  furnish  porter 
service). 

Medford  &  C.  R.  Co.  v.  Somerville,  111 
Mass.  232  (to  build  railroad  track). 

See  cases  cited,  Ames  81,  note. 

But  in  many  cases,  the  court  has,  in  its  discretion, 
enforced  such  contracts  where  particular  hardship 
would  otherwise  result. 

Hood  v.  North  Eastern  Ry.  Co.,  L.  R.  8 
Eq.  666;  Ames  82  (contract  of  railroad 
with  land  owner  that  it  will  maintain 
station). 

Prospect  Park  etc.  Co.  v.  Coney  Island  etc. 
Co.,  144  N.  Y.  152;  Ames  83  (contract 
to  run  connecting  cars). 

Adams  v.  Messinger,  supra  (manufacture 
of  patented  article,  not  otherwise  obtain- 
able.    No  skill  required). 

Newcomb  v.  Norfolk  St.  Ry.  Co.,  179  Mass. 


u  "The  court  to  the  end  of  time  may  be  called  upon  to  determine 
not  only  whether  the  prescribed  quantity  .  .  .  has  been  delivered, 
but  also  .  .  .  whether  it  was  of  suitable  size  or  shape  or  propor- 
tion."   Marble  Co.  v.  Ripley,  10  Wallace  340. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  125 

449  (enforcement  under  statute  of  pro- 
vision in  franchise  requiring  street  water- 
ing). 

See  cases  cited  Ames  86,  note. 

See  also  Turner  v.  Revere  Water  Co.,  171 
Mass.  329  (mandatory  injunction  order- 
ing water  company  to  furnish  plaintiff 
with  water). 

So  in  the  ordinary  case  of  a  contract  for  building 
repairs,  enforcement  will  not  be  decreed. 

Flint  v.  Brandon,12  7  Vesey  159;  Ames  69 

(repairs  by  lessor). 
Kansas  etc.   Co.  v.  Topeka  etc.   Co.,   135 

Mass.  34  (general  reason  not  discussed; 

particular  reason  governed). 

But  equity  courts  may  enforce  contracts  requiring 
some  building  to  be  done,  and  will  do  so  if  the  cir- 
cumstances require. 

Jones  v.  Parker,  163  Mass.  564;  Ames  73. 
(specific  performance  of  agreement  in 
lease,  to  instal  heating  and  lighting 
system.     Lessor  had  control  ot  basement). 

Lane  v.  Newdigate,  10  Vesey  192;  Ames  74 
(to  restore  stop-gate.  In  form,  an  in- 
junction against  depriving  plaintiff  of 
flow  of  water.  The  effect  was  to  require 
complete  repairs  of  stop-gate). 

Mayor  v.  Emmons  L.  R.  (1901)  1  K.  B.  D. 
515;  Ames  76  (agreement  to  build  on 
land,  in  consideration  of  conveyance). 

A  contract  for  personal  service  will  not  be  enforced 
in  favor  of  employer  or  employee.  Enforced  labor  is 
contrary  to  the  spirit  of  the  law. 


12  For  an  earlier  case,  contra,  see  Holt  v.  Holt,  2  Vernon  322;  Ames  68. 


126  EQUITY  AND  ITS   REMEDIES 

Robertson  v.  Baldwin,  165  U.  S.  275. 
Wakeham  v.  Barker,  82  Cal.  46;  Ames  87. 
See  other  cases  cited  Ames  87,  note. 

B.  Negative  Contracts  Generally. 

Certain  contracts,  negative  in  form,  are  enforced 
by  enjoining  a  party  from  doing  the  act  he  has  agreed 
not  to  do,  even  though  the  allied  affirmative  covenant 
is  not  enforceable  in  equity. 

Butterick  Pub.  Co.  v.  Fisher,  203  Mass.  122 

(agreement  to  sell  no  other  patterns  than 

plaintiff's). » 
United  Shoe  Mach.  Co.  v.  Kimball,  193  Mass. 

351. 
Anchor  Electric  Co.  v.  Hawkes,  171  Mass. 

101. 
Palmer  v.  Lavers,  218  Mass.  286  (agreement 

not  to  appeal  a  case  brought  in  a  lower 

court). 

a.   Involving  Personal  Services. 

Certain  contracts  for  personal  services,  the  affirma- 
tive provisions  of  which  will  not  be  enforced,14  may 
be  specifically  enforced  (in  some  jurisdictions)15  in 
respect  to  their  negative  provisions. 

Lumley  v.  Wagner,  1  DeGex,  Macnaghten 


w  But  see  Mass.  Rev.  Laws,  ch.  56,  sec.  1,  referred  to  therein. 

u  See  «upro,  Contracts  Involving  The  Performance  of  Labor. 

15  The  rule  probably  prevails  in  Massachusetts.  In  Rice  r. 
D'Arville,  162  Mass.  559,  the  court  expressly  avoids  deciding  whether 
such  negative  contracts  will  ever  be  enforced,  but  in  the  case  refused 
to  enforce  a  negative  contract  of  a  singer  not  to  sing  elsewhere, 
because  it  did  not  appear  that  plaintiff  (a  theatrical  manager)  was 
able  to  carry  out  his  financial  part  of  the  agreement.  The  case  of 
Lumley  v.  Wagner  has  been  cited  with  approval,  however,  in  Peabody 
v.  Norfolk,  98  Mass.  452,  in  Citizens'  Loan  Ass'n  v.  B.  &  M.  R.  R., 
196  Mass.  528,  and  in  Butterick  Pub.  Co.  v.  Fisher,  203  Mass.  122. 
See  Mass.  St.  1914,  ch.  778,  with  reference  to  its  possible  effect  on 
such  a  case. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  127 

and  Gordon  604;  Ames  93  (singer  agreed 
to  sing  for  one  theatre  and  not  to  sing  for 
any  other.     Latter  provision  enforced). 

Morris  v.  Colman,  18  Vesey437;  Ames  89 
(playwrights,  partners,  with  agreement 
not  to  write  except  for  their  joint  enter- 
prise). 

Harrison  v.  Glucose  Sugar  Ref.  Co.,  116  Fed. 
Rep.  304  (highly  paid  manager.  Damage 
from  use  of  trade  secrets  an  element). 

If,  however,  the  services  of  the  defendant  have 
no  peculiar  value  but  can  readily  be  replaced,  relief 
is  ordinarily  deDied. 

Carter  v.  Ferguson,  58  Hun.  569;  Ames  121 
(ordinary  actor.     Relief  denied). 

Phila.  Ball  Club  v.  Lajoie,  202  Penn.  210 
(star  ballplayer.     Relief  under  rule). 

A  contract  to  work  for  a  party  does  not,  in  the 
absence  of  express  language,  imply  a  contract  to 
work  for  no  other. 

Whitwood  Chemical  Co.  v.  Hardman,  L.  R. 
(1891)  2  Ch.  416;  Ames  117. 

Contra:  Montague  v.  Flockton,  L.  R.  16 
Eq.  189;  Ames  105. 

An  employee  owes  a  duty16  not  to  reveal  the  trade 
secrets  of  his  employer.  He  may  be  enjoined  from 
so  doing. 


16  This  duty  may  arise  under  an  express  contract  or  be  implied 
from  bis  fiduciary  employment.  Professor  Ames  says  that  even  a 
stranger  discovering  another's  trade  secrets  by  wrongful  means  or 
by  mistake  may  be  enjoined  from  disclosure.  See  also  F.  W.  Dodge 
Co.  v.  Construction  Information  Co.,  183  Mass.  62  (restraining 
defendant  from  publishing  news,  the  property  of  the  plaintiff,  a 
rival).  But  an  innocent  purchaser  of  trade  secrets  may  use  them. 
Chadwick  v.  Covell,  151  Mass.  190. 


128  EQUITY  AND  ITS   REMEDIES 

Solomon  v.  Hertz,  40  N.  J.  Eq.  400;  Ames 

128  (tanning  secrets). 
Peabody  v.  Noriolk,  98  Mass.  452  (express 

agreement  as  to  machinery  secrets). 
Simmons  Medicine  Co.  v.  Simmons,  81  Fed. 

Rep.  163  (formula). 

b.    Limiting  Use  of  Property. 

Contracts  wholly  in  restraint  of  trade  are  void. 
But  one  by  which  a  manufacturer  agrees  not  to  sell 
to  his  customers'  competitors  has  been  held  valid  and 
has  been  enforced  in  equity. 

N.  Y.  Bank  Note  Co.  v.  Kidder  Press  Mfg. 

Co.,  192  Mass.  391." 
Dietrichsen    v.    Cabburn,    2    Phillips    52; 

Ames  108  (patent  medicine). 
But  see  Mass.  St.  1908,  ch.  454  ("an  act 

relative  to  monopolies  and  discriminations 

in  the  sale  of  articles  or  commodities  in 

common  use"). 

And  a  contract  made  by  a  retailer  with  a  manu- 
facturer that  in  consideration  of  a  reduced  rate  he 
will  not  sell  any  other  competing  make  of  a  certain 
kind  of  goods  may  be  enforced.18 

Butterick  Pub.  Co.  v.  Fisher,  203  Mass.  122. 


17  In  this  case  the  defendant  did  not  plead  26  U.  S.  Stat,  at  Large 
209  (Now  U.  S.  Comp,  Stat.  1901,  p.  3200)  commonly  called  the 
anti-trust  act.  This  act  must  be  pleaded  specially  if  the  defend- 
ant seeks  the  advantage  of  it.  See  also  Mass.  St.  1908,  ch.  454, 
which  apparently  does  not  change  the  common  law,  except  to  give 
the  Attorney  General  or  District  Attorney  the  right  to  ask  for  an 
injunction  against  certain  illegal  monopolies. 

18  But  see  Mass.  Rev.  Laws,  ch.  56,  sec.  1,  making  it  a  criminal 
offense  to  impose  a  condition  in  the  sale  of  goods  that  the  purchaser 
shall  not  sell  or  deal  in  the  goods  of  any  other  person.  See  also 
Mass.  St.  1908,  ch.  454,  prohibiting  certain  monopolies.  But  such 
a  negative  agreement  will  not  be  implied.  Fothergill  v.  Rowland, 
L.  R.  17  Eq.  132;  Ames  111. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  129 

Metropolitan   Elec.    Co.    v.    Gooder,  L.    R. 

(1901)  2  Ch.  799. 
John  Bros.  etc.  Co.  v.  Holmes,  L.  R.  (1900) 

1  Ch.  188;  Ames  149. 

But  a  restriction  which  has  the  effect  to  drive  all 
competitors  from  the  field  is  a  monopoly  and  will 
not  be  protected. 

Merchants'   Legal   Stamp   Co.   v.   Murphy, 
220  Mass.  281  (trading  stamps). 

A  court  of  equity  will  refuse  specific  performance 
of  a  contract  which  is  in  direct  aid  of  an  illegal  con- 
bination  amounting  to  monopoly  of  trade  or  com- 
merce among  the  states,  under  the  federal  laws. 

United  Shoe  Mach'y  Co.  v.  La  Chapelle, 
212  Mass.  467  (excellent  discussion). 

The  holder  of  a  patent  has  an  absolute  monopoly 
of  the  invention,  not  affected  by  the  Federal  Anti- 
Trust  Acts,  and  may  annex  such  conditions  as  he 
chooses  to  the  use  of  his  invention.  He  has  no 
immunity  however  from  general  lawsuits  affecting 
his  patent  rights. 

Henry  v.  A.  B.  Dick  Co.,  224  U.  S.  1. 
United  Shoe  Mach'y  Co.  v.  La  Chapelle, 
supra. 

c.    Agreements  not  to  Compete. 

1.   Express  Agreements. 

An  agreement  not  to  compete  made  in  connection 
with  the  sale  of  a  business,  will  be  enforced  in  equity, 
where  reasonably  necessary19  for  the  preservation  and 


19  For  cases  where  such  covenants  have  been  bad,  see  Bishop  o. 
Palmer,  146  Mass.  469  (covenant  unrestricted  as  to  space  made 
in  connection  with  local  business),  and  Gamewell  Fire  Alarm  Tele- 
graph Co.  v.  Crane,  160  Mass.  50.  For  a  review  of  the  English 
authorities  on  contracts  in  restraint  of  trade,  see  Nordenfelt  v.  Maxim, 
Nordenfelt  Guns  &  Ammunition  Co.,  (1894)  App.  Cases  535. 


130  EQUITY  AND   ITS   REMEDIES 

protection  of  the  property  sold. 

Palmer  v.  Stebbins,  3  Pick.  188. 
Pierce  v.  Woodward,  6  Pick.  206. 
Dean  v.  Emerson,  102  Mass.  480  (mercantile 

business). 
Ropes  v.  Upton,  125  Mass.  258  (agreement 

not  to  compete  in  same  town). 
Handforth  v.  Jackson,  150  Mass.  149. 
Anchor  Electric  Co.  v.  Hawkes,  171  Mass. 

101  (history  of  enforcement  of  contracts 

in  restraint  of  trade). 
Diamond  Match  Co.  v.  Roeber,  106  N.  Y. 

473;  Ames  123. 
United  Shoe  Mach.  Co.  v.  Kimball,  193  Mass. 

351   (dictum  that  covenant  may  be  un- 
limited in  time  and  space). 

2.    Agreements  Implied  from  Sale  of  Good  Will. 

In  Massachusetts,20  a  vendor  (whether  a  sole 
trader  or  a  partner)  who  has  voluntarily  sold  the 
good  will  of  a  business  may  be  enjoined  from  setting 
up  a  competing  business  that  derogates  from  the 
grant  made  by  the  sale.  Whether  or  not  a  business 
does  this,  is  a  question  of  fact.21  The  bill  may  be 
brought  by  the  vendee  or  one  who  succeeds  to  his 
title. 


20  The  English  rule  is  that  after  a  voluntary  sale  of  a  general  mer- 
chandise business  with  the  good  will,  the  vendor  may  establish  a 
new  business  in  competition  but  may  not  solicit  his  former  customers 
or  direct  his  efforts  against  those  activities  which  belong  to  the  busi- 
ness for  which  he  had  been  paid.  Trego  v.  Hunt  (1896)  App.  C.  7 
(overruling  Pearson  v.  Pearson,  27  Ch.  D.  145).  Labouchere  v. 
Dawson,  L.  R.  13  Eq.  322. 

In  the  following  American  cases  a  former  partner,  having  sold 
his  good  will,  was  allowed  to  solicit  old  customers  by  public  adver- 
tisement or  by  direct  and  personal  solicitation.  Cottrell  v.  Bab- 
cock  Co.,  54  Conn.  122.  Williams  v.  Farrand,  88  Mich.  473.  Von- 
derbank  v.  Schmidt,  44  La.  Ann.  264. 

21  See  page  131  for  note  21. 


SPECIFIC   PERFORMANCE   OF  CONTRACTS  131 

Angier  v.  Webber,  14  Allen  211  (express 
route). 

D wight  v.  Hamilton,  113  Mass.  175  (phy- 
sician). 

Munsey  v.  Butterfield,  133  Mass.  492  (milk 
route). 

Old  Corner  Book  Store  v.  Upham,  194  Mass. 
101  (book  store;  suit  by  assignee  of  ven- 
dee). 

Foss  v.  Roby,"  195  Mass.  292  (dentists). 

Marshall    Engine    Co.    v.    New    Marshall 


11  The  history  of  this  line  of  cases  in  Massachusetts  is  interesting. 
Bassett  v.  Percival,  5  Allen  345,  decided  in  1862,  plainly  stated  there 
was  no  implied  agreement  not  to  compete  (in  that  case  by  opening 
a  grocery  store  across  the  street)  raised  from  the  sale  of  a  business 
and  good  will.  In  Angier  v.  Webber,  14  Allen  211,  there  was  an 
express  stipulation  not  to  injure  the  good  will  of  an  express  business 
which  the  defendant  sold  and  a  violation  of  this  was  enjoined.  In 
Dwight  v.  Hamilton,  113  Mass.  175,  the  sale  of  a  "physician's  prac- 
tise and  good  will"  was  said  to  raise  an  implied  covenant  not  to 
disturb  or  injure  the  vendee  in  the  enjoyment  of  that  which  he 
purchased.  This  rule,  apparently  contra  to  the  rule  in  Bassett  v. 
Percival,  has  been  followed  in  all  the  later  cases  except  Hoxie  v. 
Chaney,  143  Mass.  592,  where  an  attempt  was  made  to  re-state  the 
rule  somewhat  as  in  Bassett  v.  Percival,  and  to  distinguish  that 
case  from  Angier  v.  Webber,  Dwight  v.  Hamilton,  etc.,  on  the  ground 
that  in  the  former  case  the  business  was  local  and  in  the  latter  cases 
extended  over  "considerable  region  or  line  of  travel."  In  Old 
Corner  Book  Store  v.  Upham,  194  Mass.  101,  and  in  Marshall  En- 
gine Co.  p.  New  Marshall  Engine  Co.,  203  Mass.  410,  further  at- 
tempts are  made  to  distinguish  the  two  lines  of  cases,  by  saying  that 
in  Bassett  v.  Percival  it  was  found  as  a  fact  that  the  new  business 
did  not  derogate  from  the  grant  made  by  the  sale,  while  in  Angier 
v.  Webber,  and  other  cases  it  was  found  that  it  did.  But  this  is 
hardly  true,  for  Bassett  v.  Percival  is  plainly  decided  on  the  ground 
that  no  contract  is  implied  from  the  sale  of  good  will.  It  is  perfectly 
plain  that  Bassett  v.  Percival  is  not  law  today  and  that  the  implied 
agreements  set  forth  in  the  text  above  express  the  law  today. 

See  statement  in  10  L.  R.  A.  (N.  S.)  120  note,  to  the  effect  that 
Dwight  v.  Hamilton,  supra,  and  Foss  v.  Roby,  supra,  seem  to  be 
the  only  cases  found  anywhere  which  hold  that  the  sale  of  the  good 
will  of  a  professional  practise  implies  a  covenant  not  to  compete. 

B  See  this  case  for  an  award  of  damages,  in  addition  to  the  injunc- 
tion. 


132  EQUITY  AND  ITS   REMEDIES 

Engine  Co.,  203  Mass.  410  (manufacturing 
engines). 

Hoxie  v.  Chaney,  143  Mass.  592  (wherein 
sale  of  "all  right,  title  and  interest" 
in  partnership  property  included  the  good 
will  contributed  in  partnership  articles). 

A  covenant  not  to  compete,  express  or  implied, 
may  be  enforced  even  though  the  vendor  does  not 
compete  individually  but  as  agent  for,  or  partner  with, 
another. 

Dean  v.  Emerson,  102  Mass.  480  (partner). 

Old  Corner  Book  Store  v.  Upham,  194  Mass. 
101  (retiring  partner  organized  new  cor- 
poration to  compete). 

Boutelle  v.  Smith,  116  Mass.  Ill  (retiring 
partner  drove  bread  cart  as  agent  for 
another). 

The  covenant  not  to  compete  implied  from  the 
sale  of  the  good  will  of  a  business  may  be  unlimited 
in  time.     The  area  covered  is  a  question  of  fact. 

Foss  v.  Roby,  195  Mass.  292. 

Dwight  v.  Hamilton,  113  Mass.  175. 

Marshall  Engine  Co.  v.  New  Marshall  En- 
gine Co.,  203  Mass.  410  (unlimited  area). 

Where  there  is  a  sale  of  the  good  will  of  a  partner- 
ship by  reason  of  the  death  or  bankruptcy  of  a  part- 
ner, such  sale,"  while  carrying  with  it  everything  of 


M  This  is  the  rule  in  Massachusetts  and  many  other  jurisdictions. 
In  England  a  sale  of  the  good  will  by  the  surviving  member  of  a 
firm  is  conducted  on  the  same  basis  as  a  voluntary  sale  by  a  sole 
trader,  that  is,  the  seller  may  compete  with  the  purchaser  but  may 
not  solicit  former  customers.  In  the  case  of  a  sale  in  bankruptcy, 
however,  the  bankrupt  may  compete  and  solicit,  as  in  Massachusetts. 
In  re  David,  (1889)  1  Ch.  378.    Trego  v.  Hunt,  (1896)  A.  pp.  C.  7. 


SPECIFIC   PERFORMANCE   OF  CONTRACTS  133 

advantage  belonging  to  the  existing  business," 
leaves  the  former  member  of  the  firm,  or  the  bank- 
rupt, free  to  start  a  competing  business  and  even  to 
solicit  former  customers. 

Moore  v.  Rawson,  199  Mass.  493  (good 
discussion  of  value  of  such  good  will). 

Hutchinson  v.  Nay,"  187  Mass.  262. 

When  one  sells  a  business  with  no  mention  of  good 
will,  although  he  may  engage  in  the  same  kind  of 
business  under  the  old  name,  he  may  under  some 
circumstances  be  enjoined  from  conducting  the 
business  so  as  to  injure  that  which  he  has  sold. 

Fairfield  v.  Lowry,  207  Mass.  352  (may 
not  solicit  former  customers). 

A  sale  of  goods  and  chattels  as  shown  on  the  books 
does  not  imply  a  sale  of  the  good  will. 

Webster  v.  Webster,  180  Mass.  310. 

C.   Relief    for    and    against    Third    Persons. 

In  order  to  understand  the  equitable  doctrine  of 
restrictions,  it  is  necessary  to  keep  in  mind  certain 
distinctions  between  the  following: 

a.    Legal  Easements,26  which  are  incorporeal  rights27 


M  The  right  to  advertise  as  successors  to  the  old  firm  is  such  an 
advantage;  though  the  business  may  not  be  conducted  under  the 
old  firm  name.  Moore  v.  Rawson,  199  Mass.  493.  See  also  Mass. 
R.  L.  ch.  72,  sec.  5.  Lothrop  Pub.  Co.  v.  Lothrop,  etc.,  Co.,  191 
Mass.  353. 

35  See  discussion  of  this  case  in  Hutchins  v.  Page,  204  Mass.  284, 
where  there  was  an  accounting  between  parties  after  termination 
of  the  partnership. 

96  Legal  easements  are  referred  to  here,  only  to  make  clear  the 
distinctions  between  them  and  equitable  easements,  so-called. 
For  injunctions  against  interference  with  legal  easements,  see  Chapter 
IX  herein. 

87  These  rights  are  usually  appurtenant  to  other  property,  called 
the  dominant  estate.  They  may,  however,  be  in  gross,  that  is, 
appurtenant  to  no  particular  premises,  but  belonging  to  the  person 
possessing  the  easement,  and  if  so  created  are  inheritable  and  assign- 
able interests.  Goodrich  v.  Burbank,  12  Allen  459  (right  to  take 
water  from  a  well). 


134  EQUITY  AND  ITS   REMEDIES 

in  real  property  of  another  (as,  for  example,  rights  of 
way)  arising  from  grant,  devise,  reservation,  pre- 
scription, implication,  estoppel,  or  necessity.  When 
once  created  they  run,  by  way  of  benefit,  with  the 
dominant  estate  and  pass  to  the  assignee  of  the 
owner  of  the  estate  even  though  not  mentioned  in 
the  deed  to  him.  They  bind  by  way  of  burden  the 
assignee  of  the  owner  of  the  servient  estate. 

Brown  v.  Thissel,  6  Cush.  254  (way  created 
by  reservation). 

King  v.  Wight,  155  Mass.  444  (reciprocal 
easements  created  by  party  wall  indenture) 

Gorton  Pew  Fish.  Co.  v.  Tolman,  210  Mass. 
402  (implied  easements  discussed). 

Tufts  v.  Charlestown,  2  Gray  271  (easement 
by  estoppel). 

An  easement  is  commonly  created  by  a  deed  poll" 
and  concerns  real  estate  only.  It  is  a  jus  in  rem  as 
distinguished  from  a  mere  covenant  or  personal  under- 
taking. It  may,  however,  be  created  by  words  sound- 
ing in  covenant,  if  the  seeming  covenant  is  for  a 
present  enjoyment  of  a  nature  recognized  by  law 
as  capable  of  being  treated  as  a  jus  in  rem  and  not 
merely  the  subject  of  personal  undertaking,  and  if 
the  deed  discloses  that  the  covenant  is  for  the  benefit 
of  adjoining  land  conveyed  at  the  same  time. 

Hogan  v.  Barry,  143  Mass.  538  (covenant  of 
grantor  in  deed  that  no  building  will  be 
erected  on  lot  adjoining  that  conveyed, 
nearer  than  four  feet  to  line). 

Norcross  v.  James,  140  Mass.  188;  Ames  182 
(discussion  of  certain  "new  and  unusual 
incidents"  which  cannot  be  the  subject 
of  easement). 


28  The  usual  form  of  deed  in  Massachusetts,  signed  by  the  grantor 
only. 


SPECIFIC   PERFORMANCE   OF   CONTRACTS  135 

b.    Certain  Covenants  Running  with  Land29  and 
Enforceable  at  Law. 

These  include 

1.  Certain  covenants  in  deeds,  as  that  of  warranty 
in  a  deed  poll,  which  binds  the  grantor  and  his  heirs 
and  runs  by  way  of  benefit  with  the  land  to  the  gran- 
tee's heirs  and  assigns. 

Slater  v.  Rawson,  6  Met.  439. 

Peters  v.  Stone,  193  Mass.  179  (by  lessee  in 
indenture  to  make  improvements  and 
leave  them  at  the  end  of  the  term). 

2.  Certain  covenants30  "touching  and  concerning 
land"  (and  not  merely  personal  undertakings)31 
and  creating  interests  in  the  nature  of  easements  and 
enforceable  between  parties  having  privity  of  estate.33 

Morse  v.  Aldrich,  19  Pick.  449  (agreement 
between  mill  owners  as  to  use  of  mills). 


w  See  note  on  page  137  as  to  certain  covenants  that  "run  with 
the  business"  in  equity  —  and  perhaps  to  some  extent  at  law. 

30  The  obligation  of  a  grantee  arising  from  the  acceptance  of  a 
deed  poll  is,  of  course,  not  a  covenant  of  the  grantee,  but  an  under- 
taking which,  at  law,  does  not  run  with  the  land  and  is  not  an  ease- 
ment, although  in  equity  in  certain  cases  it  may  amount  to  an  ease- 
ment or  restriction  and  run  with  the  land.  Martin  v.  Drinan,  128 
Mass.  515  (stipulation  that  grantee  shall  repair  building  on  grantor's 
adjoining  land).  Kennedy  v.  Owen,  136  Mass.  199  (stipulation  that 
grantee  shall  fence  between  properties).  Lincoln  v.  Burrage,  177 
Mass.  378  (party  wall  agreement  in  deed  poll).  Childs  v.  B.  &  M.  R. 
R.,  213  Mass.  91  (stipulation  in  deed  poll  that  grantee  shall  create 
a  way  in  futuro  over  granted  land) .  And  see  Equitable  Easements, 
infra. 

n  Where  one  party  covenants  with  another  in  respect  to  land,  and 
at  the  same  time  with  and  as  a  part  of  making  the  covenant,  neither 
parts  with  nor  receives  any  title  or  interest  in  the  land,  nor  creates 
an  easement  or  a  right  in  the  nature  of  an  easement  for  the  benefit 
of  the  land,  such  a  covenant  is  at  best  a  mere  personal  contract  which 
does  not  run  with  the  land.  See  King  v.  Wight,  155  Mass.  444 
(dictum) . 

82  Privity  of  estate  is  necessary  in  order  that  these  covenants 
shall  run  with  the  land.  As  to  what  constitutes  privity  of  estate, 
see  Norcross  v.  James,  140  Mass.  188. 


136  EQUITY  AND  ITS   REMEDIES 

Savage  v.  Mason,  3  Cush.  500  (party  wall 
agreement). 

Bronson  v.  Coffin,  108  Mass.  175  (agree- 
ment of  grantor  to  fence  adjoining  land). 

c.    Restrictions,  or  Equitable  Easements. 

An  equitable  easement  is  a  stipulation  as  to  the 
use  of  property,  real  or  personal,  which  may  be  spe- 
cifically enforced33  (by  injunction)  in  equity  by  one 
who  has  no  legal  title  or  interest  in  the  property  re- 
stricted and  no  covenant  which  he  may  enforce  at 
law.  It  is  also  enforceable  in  equity  against  one 
who  is  a  purchaser  (with  notice  actual  or  constructive) 
84  from  one  originally  bound  by  it.  It  is  commonly 
created  by  the  acceptance  of  a  deed  poll  containing 
restrictive  clauses.36  It  may  also  be  created  by  a 
statute  under  which  the  state  sells  land. 

Whitney  v.  Union  Railway  Co.,   11   Gray 

359  (general  discussion.     Land  restricted 

as  to  its  use  for  trade). 
Schwoerer  v.   Boylston   Market,   99   Mass. 

285  (lot  not  to  be  built  on). 
Tulk  v.  Moxhay,  2  Phillips,  774;  Ames  147 

(real  estate). 
Mass.  Inst,  of  Technology  v.  Boston  Soc. 


w  This  enforcement  is  on  the  theory  that  one  who  buys  property 
with  notice  that  his  predecessor  in  title  has  agreed  to  the  restriction 
of  its  use,  must  in  equity  conform  to  that  agreement.  Bailey  v. 
Agawam  Nat'l  Bank,  190  Mass.  20;  Childs  v.  B.  &  M.  R.  R.,  213 
Mass.  91. 

M  Thus  a  mandatory  injunction  may  issue  against  one  who  has 
inherited  land  and  is  actually  ignorant  of  restrictions,  if  he  has 
constructive  notice.    Allen  v .  Barrett,  213  Mass.  36. 

35  As  the  restrictions,  common  in  deeds,  against  building  within 
a  certain  distance  of  the  street  or  against  using  a  building  for  offen- 
sive trades  or  for  more  than  a  certain  number  of  families.  See  num- 
erous restrictions  in  Renals  v.  Cowlishaw,  9  Ch.  D.  125;  Ames  159. 
Clauses  consisting  of  words  apt  to  create  a  condition  at  common 
law  are  frequently  interpreted  as  restrictions.  Cassidy  v.  Mason, 
171  Mass.  507. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  137 

Nat.  History,  218  Mass.  189  (created  by 
statute). 

John  Bros.  Abergarw  Brewery  Co.  v.  Holmes, 
36  L.  R.  (1900)  1  Ch.  188;  Ames  149  (agree- 
ment of  innkeeper  that  he  and  assigns 
should  sell  only  John  Bros,  beer,  enforced 
by  successors  to  John  Bros,  against  lessee 
of  innkeeper,  with  notice). 

Murphy  v.  Christian,  etc.,  Publishing  Co., 
38  N.  Y.  App.  Div.  426;  Ames  157  (agree- 
ment between  publisher  owning  copyright 
and  a  licensee  as  to  minimum  price  for 
books,  enforced  by  licensee  against  pur- 
chaser of  publisher's  business). 

Francisco  v.  Smith,  143  N.  Y.  488;  Ames 
186  (agreement  not  to  compete  for  five 
years  enforceable  by  purchaser  from 
vendee.     It  is  an  asset  of  business). 

Restrictions  created  by  the  acceptance  of  deeds 
poll,  are  the  commonest  in  form.  If  intended  to 
benefit  other  land,37  the  right  to  enforcement  in  equity 
is  in  the  owner38  or  owners  of  the  other  land  and  his 
or  their  successors  in  title.39 


88  This,  and  the  next  two  cases  cited,  have  to  do  with  the  enforce- 
ment of  covenants  restricting  the  use  of  personal  property.  Between 
the  original  parties  to  the  agreements,  at  least,  there  probably  could 
have  been  recovery  of  damages  at  law,  but  the  importance  of  these 
cases  is  that  agreements  apparently  of  a  personal  nature  are  here 
enforced  in  equity  not  between  the  parties  thereto,  but  against 
third  persons  who  have  acquired  the  restricted  personal  property 
with  knowledge  of  the  restrictions.  Quaere  as  to  what  extent  in 
appropriate  cases  these  covenants  "run  with  the  business"  so  as 
to  give  rights  to  enforce  at  law. 

87  For  cases  where  there  were  restrictive  clauses  but  an  absence 
of  a  general  scheme  from  which  the  intent  to  benefit  particular  lota 
could  be  inferred,  see  Webber  v.  Landrigan,  215  Mass.  221;  Dana 
v.  Wentworth,  111  Mass.  291. 

88  A  mortgagee  has  sufficient  interest.  Stewart  v.  Finkelstone, 
206  Mass.  28  (where  he  joined  with  owners). 

89  See  also  Mass.  Rev.  Laws,  ch.  96,  sec.  7,  where  a  grantee  from 
the  Commonwealth  may  bring  proceedings  in  equity  to  compel  the 
Harbor  and  Land  Commissioners  to  enforce  certain  rights  in  deeds. 


138  EQUITY  AND   ITS  REMEDIES 

The  other  land  intended  to  be  benefited  may  be, 

1.  Expressly  named  in  the  deed. 

Rogers  v.  Hosegood,L.  R.  (1900)  2  Ch.  388; 
Ames  165. 

2.  Or  inferred  from  the  existence  of  a  general 
building  scheme. 

Hano  v.  Bigelow,  155  Mass.  341. 
Sprague  v.  Kimball,  213  Mass.  380. 
Bacon  v.  Sandberg,  179  Mass.  396. 

3.  Or  determined  from  the  fact  that  the  grantor 
could  have  had  no  other  idea. 

Peck  v.  Conway,  119  Mass.  546;  Ames  162 
(residence  adjoining). 

4.  Or  dependent  on  the  language  of  a  statute,  and 
the  attendant  circumstances. 

Mass.  Inst,  of  Technology  v.  Boston  Soc, 
Nat.  Hist.  218  Mass.  189. 

This  intent  is  a  question  of  the  construction  of  the 
instrument  in  the  light  of  attendant  circumstances. 
In  the  absence  of  an  intent  to  benefit  other  land,  an 
apparent  restriction  may  operate  merely  as  a  personal 
agreement  not  enforceable  by  the  assigns  of  the  person 
benefited. 

Nottingham  Patent  Brick  &  Tile  Co.  v. 
Butler,  L.  R.  16  Q.  B.  D.  778;  Ames  169 
(rule  stated). 
Renals  v.  Cowlishaw,  9  Ch.  D.  125;  Ames 
159  (intent  to  benefit  the  then  occupant, 
not  the  land). 
Badger  v.   Boardman,    16   Gray   559    (rule 

stated). 
Lowell  Inst,  for  Sav.  v.  Lowell,  153  Mass. 
530,  and  cases  therein  cited. 

The    person    who    originally    creates    restrictions 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  139 

may  enforce  them  for  his  grantees,  although  he  is 
no  longer  interested. 

Riverbank  Improvement  Co.  v.  Bancroft, 
209  Mass.  217. 

In  the  case  of  building  restrictions  affecting  a 
whole  neighborhood,  each  lot  is  commonly  burdened40 
for  the  benefit  of,  and  benefited  by  the  burden  upon, 
each  other  lot,  whether  previously  or  subsequently 
conveyed. 

Hopkins  v.  Smith,  162  Mass.  444. 

Barrow  v.  Richard,  8  Paige  351;  Ames  173. 

But  a  provision  intended  to  be  a  restriction  for  the 
benefit  of  an  entire  stranger  will  not  be  enforced. 

Hazen  v.  Matthews,  184  Mass.  388. 
Haverhill  Sav.  Bank  v.  Griffin,  184  Mass.  419. 

Restrictions  in  favor  of  land,  in  order  to  be  enforce- 
able in  equity  by  or  against  persons  other  than  those 
originally  creating  them,  must  be  such  as  "make  for 
greater  pleasure  and  comfort  in  the  occupation  of 
the  neighboring  land." 

Norcross  v.  James,  140  Mass.  188;  Ames 
182  (agreement  of  grantor  not  to  use  other 
land  in  competition  as  a  quarry  not  en- 
forced between  assigns.  Does  not  run 
with  land  at  law  or  in  equity).41 


40  The  burden  will  not  be  implied,  however,  from  the  existence 
of  restrictions  on  adjoining  lots.  As  a  matter  of  practise,  a  clause 
by  which  the  grantor  agrees  similarly  to  restrict  the  remaining  lots 
in  the  tract  should  be  inserted  in  the  deed  of  one  who  purchases 
a  restricted  lot.  McCusker  v.  Goode,  185  Mass.  607;  Sprague  ». 
Kimball,  213  Mass.  380. 

41  Compare  with  this,  Hodge  v.  Sloan,  107  N.  Y.  244;  Ames  184, 
in  which  case  the  enforcement  by  the  grantor  himself  was  allowed, 
against  an  assignee  of  the  grantee,  of  a  restriction  against  the  sale 
of  sand  from  the  granted  land  in  competition  with  the  grantor. 
Probably  the  original  party  to  the  contract  could  have  enforced  the 

Continued  on  page  140. 


140  EQUITY  AND  ITS   REMEDIES 

It  has  been  held  no  objection  (in  Massachusetts, 
at  least)  that  restrictions  require  active  duties  (such 
as  repairing,  or  even  paying  money)  although,  in 
general,  affirmative  contracts  bind  only  the  coven- 
antor, his  heirs,  executors  and  administrators  and  do 
not  run  with  the  land. 

Whittenton  Mfg.  Co.  v.  Staples,  164  Mass. 

319  (payment  of  money). 
Middlefield  v.  Church  Mills  Knitting  Co.," 

160  Mass.  267  (an  anomalous  case). 
Contra:    Hayward  v.  Brunswick,  etc.  Soci- 
ety,  8  Q.   B.   D.   403;  Ames   176   (only 
covenants    restricting    use    of    land   are 
enforceable). 

When  a  restriction  is  once  created  for  the  benefit 
of  land,  the  right  to  enforce  it  passes  to  subsequent 
owners  of  the  benefited  land  even  though  they  are 
ignorant  of  it  or  have  not  contracted  for  it. 

Peck  v.  Conway,  119  Mass.  546;  Ames  162. 

Restrictions  not  expressly  limited  in  duration  are 
construed,  in  the  absence  of  statute,  as  permanent. 

Jackson  v.  Stevenson,  156  Mass.  496;  Ames 
179. 

Mass.  Inst,  of  Technology  v.  Boston  Soc. 
Nat.  Hist.,  218  Mass.  189  (dictum,  that 
restrictions  by  individual  that  square 
should  be  "reserved  from  sale  forever" 
would  be  invalid). 

See    Mass.    Rev.    Laws,    ch.    134,    sec.    20 


Continued  from  page  139 
agreement  in  Norcross  v.  James.  Professor  Ames  says  it  is  not 
(in  Norcross  v.  James)  a  question  of  "running  with  the  land"  but 
of  public  policy  how  far  equity  will  go  in  holding  assigns  to  a  con- 
tract. See  collection  of  cases  in  17  Harvard  Law  Review  (Jan. 
1904)  175-6. 

42  See  comment  on  this  case  in  Lincoln  v.  Burrage,  177  Mass.  at 
page  380. 


SPECIFIC   PERFORMANCE  OF   CONTRACTS  141 

(limiting  those  not  otherwise  limited,  to 
thirty  years). 
See    Davidson    v.    Sohier    220    Mass.    270 
(restriction  applying  to  first  house  to  be 
built  on  lot). 

But  equitable  relief  by  injunction  may  be  refused 
if  the  enforcement  could  have  no  other  effect  than 
to  harass  and  injure  the  defendant,  without  effecting 
the  purpose  for  which  restrictions  were  originally 
made,  or  where  the  plaintiff  has  been  guilty  of  laches," 
acquiescence,  or  the  violation  of  the  same  restrictions, 
or  where  the  plaintiff's  interest  is  too  remote. 

Jackson  v.  Stevenson,  156  Mass.  496;  Ames 
179  (character  of  neighborhood  wholly 
changed.  Actual  damages  44  given,  but 
no  injunction). 

Stewart  v.  Finkelstone,  206  Mass.  28  (dis- 
cussion of  laches). 

Codman  v.  Bradley,  201  Mass.  361  (no  laches 
where  work  not  discovered  by  plaintiff 
because  done  behind  high  fence;  nor  is 
change  in  use  of  buildings  in  neighborhood 
conclusive).45 

Loud  v.  Pendergast,  206  Mass.  122  (laches 
and  violation  of  similar  restrictions). 

Bacon  v.  Sandberg,  179  Mass.  396  (violation 
of  same  restriction  by  plaintiff). 

Johnston  v.  Hall,  2  K.  &  J.  414;  Ames  187 
(plaintiff's  interest  that  of  reversion  after 
999  year  lease). 


48  But  it  is  not  laches  for  one  to  fail  to  bring  a  bill  if  another  has 
brought  one  seasonably  and  then  settled  by  selling  his  land  after 
rescript  from  the  court.     Daly  v.  Foss,  199  Mass.  104. 

44  Money  damages  were  here  given,  although  the  cause  of  action 
was  purely  equitable  and  not  such  as  could  be  maintained  at  law. 
See  also  accrued  damages  in  Childs  v.  B.  &  M.  R.  R.,  213  Mass.  91. 

45  The  maintenance  of  a  building  line  may  be  as  important  for 
business  as  for  dwelling  neighborhood. 


142  EQUITY  AND   ITS   REMEDIES 

In  Massachusetts,  by  statute,  land  may  be  freed 
by  the  Land  Court  from  restriction,  to  the  extent 
required  by  the  equities  of  the  case  or  the  public 
interest.  Persons  entitled  to  the  benefit  of  such 
restrictions  may  have  damages  assessed. 

Mass.  St.  1915,  ch.  112. 

The  mere  probability  that  the  character  of  a  neigh- 
borhood will  change  in  the  near  future  is  no  ground 
for  refusing  to  enforce  a  restriction. 

Evans  v.  Foss,  194  Mass.  513  (garage  in 
residential  neighborhood). 

A  purchaser  of  a  part  of  a  restricted  lot  of  land  has 
no  remedy  in  equity  against  the  owner  of  the  other 
part  of  the  same  lot.46 

Jewell  v.  Lee,  14  Allen  145. 
King  v.  Dickeson,  L.  R.  40  Ch.  Div.  596; 
Ames  178. 

Restrictions,  being  interests  in  land,  must,  under 
statutes,  be  declared  in  writing,  and  agreements 
concerning  them  are  within  the  Statute  of  Frauds.47 

Sprague  v.  Kimball,  213  Mass.  380  (an  oral 
agreement  not  to  restrict  land  not  en- 
forced). 

Restrictions  are  not  extinguished  by  non-user  for 
twenty  years  unless  it  is  accompanied  by  a  use  of  the 


46  Of  course,  the  only  duty  of  the  lot  owner,  before  division,  or 
his  successors  after  division,  is  toward  the  grantor  or  such  persons 
as  possess  his  estate  in  the  land  for  the  benefit  of  which  the  restric- 
tion was  created.  These  cases  should  be  distinguished  from  Sanborn 
v .  Rice,  129  Mass.  387,  in  which  an  owner  of  a  lot  got  relief  against 
the  owner  of  another,  although  their  grantor  obtained  both  lots  in 
a  single  deed  imposing  restrictions. 

47  There  may  be  an  exception  in  the  case  of  a  restriction  created 
by  estoppel  or  implied  grant.  See  Tallmadge  v.  East  River  Bank, 
26  N.  Y.  105  (where  line  of  restriction  was  shown  on  a  plan).  See 
also  Sprague  v.  Kimball,  213  Mass.  380. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  143 

restricted  land  inconsistent  with  the  existence  of  the 
restriction. 

Smith  v.  Price,  214  Mass.  298. 

Equitable  relief  will  be  refused  where  substantially 
all  the  landowners  affected  have  so  conducted  them- 
selves as  to  indicate  an  abandonment  of  the  right  to 
enforce  the  restrictions. 

Loud  v.  Pendergast,  206  Mass.  122. 

But  a  mere  failure  to  enforce  the  same  restrictions 
against  other  violators,  does  not  bar  the  plaintiff. 

Codman  v.  Bradley,  201  Mass.  361  (Tremont 
St.,  Boston). 

Nor  does  a  mere  technical  violation  by  the  plaintiff 
bar  his  enforcement. 

Stewart  v.  Finkelstone,  206  Mass.  28  (plain- 
tiff's building,  built  fifty  years  before,  had 
an  ell  contrary  to  restrictions). 

But  entrenchment  behind  considerable  expenditure 
of  money  cannot  shield  premeditated  efforts  to  evade 
or  circumvent  the  obligation  of  restrictions. 
Stewart  v.  Finkelstone,  206  Mass.  28. 

D.   Statute   of  Frauds  —  Part  Performance. 

The  Statute  of  Frauds48  requires  that  all  contracts 
concerning  land,  in  order  to  be  enforceable,  shall  be 
in  writing.49 


48  There  are  other  statutes  which  should  be  distinguished  from 
the  Statute  of  Frauds,  such  as  those  requiring  that  the  creation  or 
transfer  of  all  interests  in  land  shall  be  in  writing  (see  Mass.  Rev. 
Laws,  ch.  127,  sec.  3).  These  statutes  usually  except  such  interests 
as  are  created  by  operation  of  law,  such  as  constructive  and  result- 
ing trusts. 

49  For  a  discussion  of  the  requirements  of  the  statute  as  to  the 
nature  of  the  written  memorandum,  as  to  the  time  of  performance 
where  contract  is  silent  on  this  point,  and  as  to  the  non-necessity 
for  the  plaintiff's  signing  the  memorandum,  see  Nickerson  v.  Bridges, 
216  Mass.  416.  An  oral  promise  to  sign  a  written  agreement  is 
within  the  statute.    Sarkisian  v.  Teele,  201  Mass.  596. 


144  EQUITY  AND   ITS   REMEDIES 

See  Mass.  Rev.  Laws,  ch.  74,  sec.  1. 

But  such  contracts,  though  oral,  if  partly  performed 
by  the  party  seeking  the  remedy,  may  in  equity  be 
specifically  enforced  notwithstanding  the  statute." 
The  ground  of  enforcement  is  the  equitable  fraud81 
that  would  result  from  allowing  the  statute  to  be  a 
bar,  or  the  equitable  estoppel  of  the  defendant  to  set 
up  the  statute. 

Hubbell  v.  Warren,  8  Allen  173. 

The  acts  of  part  performance  must 

1.  Have  been  by  the  party  seeking  the  remedy. 

Barnes  v.  B.  &  M.  R.R.,  130  Mass.  388. 

2.  Have  been  in  pursuance  of  a  contract  and 
such  as  to  alter  the  relations  of  the  parties. 

Graves  v.  Goldthwaite,  153  Mass.  268  (per- 
formance of  a  collateral  contract  not 
sufficient). 

Burns  v.  Daggett,  141  Mass.  368;  Ames  284. 

3.  Unequivocally,  without  parol  assistance,  point 
to  the  existence  of  the  particular  contract. 

So  the  conveyance  of  one  parcel  is  not  evidence  of 
an  agreement  to  convey  any  interest  in  an  adjoining 
tract. 

Glass  v.  Hulbert,  102  Mass.  24  (fee  in 
another  tract)." 


50  This  doctrine  is  wholly  repudiated  in  several  of  the  southern 
states.  It  has  no  application,  in  Massachusetts,  to  agreements  to 
sell  personalty.  But  an  entire  agreement  including  realty  and 
personalty  is  within  the  Statute  of  Frauds  and  delivery  of  the  per- 
sonalty does  not  constitute  part  performance.  Sarkisian  v.  Teele, 
201  Mass.  596. 

51  The  mere  non-performance  of  an  oral  contract  where  no  relation 
of  trust  and  confidence  exists,  is  not  such  fraud.  Sprague  v.  Kimball, 
213  Mass.  380  (and  cases  cited).  Montacute  v.  Maxwell,  1  P.  Wms. 
618;  Ames  274. 

52  See  page  145  for  note  52. 


SPECIFIC  PERFORMANCE  OF   CONTRACTS  145 

Sprague  v.  Kimball,  213  Mass.  380  (an 
equitable  interest  in  another  tract). 

The  mere  payment  of  money53  is  not  such  evidence. 
Glass  v.  Hulbert,  supra. 
Pengall  v.  Ross,  2  Eq.  Abr.  46;  Ames  276. 

Nor  is  the  delivery  of  other  alleged  consideration 
unequivocal  evidence. 

Barnes  v.  B.  &  M.  R.R.,  130  Mass.  388 
(failure  to  sue  for  damages  for  taking  of 
location). 

Smith  v.  Hatch,  46  N.  H.  146;  Ames  277 
(conveyance  of  one  lot  no  evidence  of 
contract  to  exchange). 

Bigelow  v.  Ames,  108  U.  S.  10  (enforcement 
imp-'**  of  oral  contract  to  exchange  where  con- 

veyance of  one  parcel  and  possession  of 
other). 

Maddison  v.  Alderson54  L.  R.  8  App.  Cases 
467 ;  Ames  295  (performance  of  services  no 
evidences  of  contract  to  convey  land). 

4.   Include  a  change  of  possession65  from  agreed 


62  This  case  should  be  clearly  distinguished  from  Williams  v. 
Carty,  205  Mass.  396,  where  au  oral  agreement  to  convey  the  "Eph- 
raim  Hatch"  farm  was  held  to  contemplate  the  including  of  a  parcel 
not  in  the  deed. 

83  There  is  an  adequate  remedy  at  law  where  money  has  been  paid 
but  no  deed  received;  but  if  improvements  have  been  made  in  the 
property  there  is  no  adequate  remedy  but  is  technical  liability  for 
trespass. 

54  See  various  other  cases  in  accord  and  contra,  in  note,  Ames  303. 

55  In  Glass  v.  Hulbert,  the  entry  for  the  purpose  of  possession  was 
thought  to  be  no  more  extensive  in  its  operation  than  the  descrip- 
tion contained  in  the  deed,  because  the  description  in  the  deed  cor- 
responded with  the  agreement,  the  alleged  fraud  touching  the  agree- 
ment and  not  the  deed.  In  Williams  v.  Carty,  the  fraud  related 
only  to  the  deed.  The  agreement  is  alleged  to  have  been  for  the  sale 
of  a  unit  of  real  estate,  namely,  the  Hatch  farm,  of  which  the  omitted 
lot  was  but  a  fraction.  The  allegation  in  the  bill  that  the  plaintiff 
took  possession  of  the  entire  farm  was  held  to  mean  the  entire  tract 
orally  agreed  upon. 


146  EQUITY  AND  ITS  REMEDIES 

vendor  to  vendee  or  agreed  lessor  to  lessee, 
with  the  knowledge  or  consent  of  the  agreed 
vendor  or  lessor. 

Barnes  v.  B.  &  M.  R.R.,  130  Mass.  388. 

Traveler  Shoe  Co.  v.  Koch,  216  Mass.  412 
(agreement  to  lease). 

The  continued  possession  of  a  tenant  is  not  such  a 
change,  because  equally  consistent  with  tenancy  at 
will,  but  the  payment  of  increased  rent  or  the  making 
of  extensive  repairs  by  a  tenant  at  the  expiration  of 
his  lease  may  be  evidence  of  a  new  lease. 

Wills  v.  Stradling,  3  Vesey  398;  Ames  291. 

Mundy  v.  Jolliffe,  5  Mylne  &  Craig  167; 
Ames  289. 

This  change  of  possession  should  be  while  the  agreed 
vendor  owns  the  property,  not  before. 

Kaufman  v.  Cook,  114  111.  11;  Ames  309n. 

In  some  jurisdictions  (including  Massachusetts  and 
the  Federal  Courts),  in  addition  to  the  foregoing 
change  of  possession  there  must  ordinarily  be  such 
expenditures  for  improvements  known  (or  presumed 
to  be  known)  to  the  agreed  vendor,  or  such  other 
change  of  situation,  that  adequate  compensation  can 
only  be  made  by  conveyance. 

Potter  v.  Jacobs,  111  Mass.  32  (house  built 
before  deed  passed). 

Burns  v.  Daggett,  141  Mass.  368;  Ames  284 

(the  above  rule  laid  down). 

» 

Perkins  v.  Perkins,  181  Mass.  401. 

Williams  v.  Carty,  205  Mass.  396  (change  of 
situation,  without  improvements). 

In  some  other  jurisdictions  the  change  of  possession, 
if  made  with  the  acquiescence  of  the  agreed  vendor  or 


SPECIFIC  PERFORMANCE  OF   CONTRACTS  147 

lessor  need  not  be  accompanied  by  improvements." 
Butcher  v.  Stapely,  1  Vernon  363;  Ames  279. 
Ungley  v.  Ungley,  L.  R.  5  Ch.  D.  887;  Ames 
281  (consideration  of  marriage). 

The  doctrine  of  part  performance  applies  to  agree- 
ments to  convey  easements,  and  to  give  leases. 

Barnes  v.  B.  &  M.  R.R.,  130  Mass.  388. 

E.  India  Co.  v.  Vincent,  L.  R.  35  Ch.  D. 
694;  Ames  310. 

Harrell  v.  Sonnabend,  191  Mass.  310  (agree- 
ment to  give  a  lease). 

Traveler  Shoe  Co.  v.  Koch,  216  Mass.  412 
(agreement  to  give  a  lease). 

An  agreement  to  make  a  gift  may  be  enforced,  if 
there  has  been  part  performance. 

Seavey  v.  Drake,  62  N.  H.  393;  Ames  308. 

Apart  from  the  doctrine  of  part  performance,  there 
may  be  specific  performance  of  an  oral  contract  where 
there  is  antecedent  fraud,  resulting  in  the  substitution 
of  a  fictitious  agreement. 

Mullet    v.    Halfpenny,   Prec.  in    Ch.  404; 

Ames  315. 
Peek  v.  Peek,  77  Cal.  106. 

E.  Partial  Performance.57 

Where  there  is  a  slight  deficiency  in  quantity  or 
quality,  or  a  small  incumbrance  on  the  property, 
specific  performance  is  sometimes  decreed  in  favor 
of  the  vendor,  with  an  allowance  to  the  agreed  vendee 
for  the  defects. 


56  Except  in  a  few  jurisdictions  (as  by  statute  in  Alabama)  the 
payment  of  the  purchase  money  does  not  seem  to  be  an  essential 
prerequisite  for  a  bill  for  enforcement  by  vendee. 

67  Because  of  the  similarity  of  name,  careful  distinction  should 
be  made  between  this  doctrine  and  that  of  Part  Performance. 


148  EQUITY  AND   ITS   REMEDIES 

Dyer  v.  Hargrave,  10  Vesey,  505;  Ames  245. 
Mansfield  v.  Wiles,  221  Mass.  75. 

The  agreed  vendee  may  usually  have  specific  per- 
formance with  compensation  for  what  the  seller 
cannot  give  him,  provided  the  agreed  vendee  supposed 
at  the  time  of  the  contract  that  the  seller  could 
convey  all. 

Pingree  r.  Cofiin,  12  Gray  288. 

Tobin  v.  Larkin,  183  Mass.  389. 

But  the  agreed  vendee  may  not  have  such  relief 
where  the  agreement  stipulates  that  the  contract 
shall  end  if  the  agreed  vendor  cannot  furnish  a  good 
title. 

Old   Colony  Trust   Co.   v.   Chauncey,   214 
Mass.  271. 

F.  Time  the  Essence  of  the  Contract. 

Where  a  certain  time  is  fixed  in  the  contract  for 
performance,  equity68  ordinarily  treats  the  provision 
as  formal  rather  than  essential  and  permits  one  to 
compel  performance  by  the  other,  notwithstanding  his 
own  slight  delay. 

Barnard  v.  Lee,  97  Mass.  92. 

Parkin  v.  Thorold,  16  Beavan  59;  Ames  327. 

Mansfield  v.  Wiles,  221  Mass.  75. 

Equity  commonly  requires,  however,  in  such  a  case 
that  the  party  seeking  the  remedy  shall  have  been 
"able  and  willing"  to  complete  his  contract  substanti- 
ally at  the  time  specified.  The  circumstances  of  each 
case  will  be  considered. 


88  The  rule  as  to  when  a  contract  must  be  performed  is  not  the 
same  at  law  as  in  equity.  At  law  it  must  be  performed  within  the 
time  specified  in  the  contract  or,  if  no  time  is  specified,  within  a 
reasonable  time.  If  not  then  performed  it  may  be  rescinded  by 
either  party.  In  equity,  unless  time  is  made  "of  the  essence  of  the 
contract,"  the  agreement  need  not  be  performed  within  the  time 
specified.    Mansfield  v.  Wiles,  221  Mass.  75. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  149 

Pomeroy,  sec.  1408. 

Thaxter  v.  Sprague,  159  Mass.  397  (Offered 
to  perform,  several  months  late.  Enforce- 
ment refused). 

Barnard  v.  Lee,  97  Mass.  92  (Contract 
stipulated  payment  on  April  1;  tender 
made  May  25,  vendee  being  in  meantime 
in  possession,  though  not  ready.  En- 
forced). 

A  failure  to  make  a  tender  of  performance59  at  the 
agreed  date,  if  time  is  not  of  the  essence  of  the  con- 
tract, and  the  defendant  has  repudiated  the  contract, 
will  ordinarily  not  prejudice  the  plaintiff  beyond  the 
payment  of  costs. 

Tobin  v.  Larkin,  183  Mass.  389. 
Rutherford  v.  Haven,  11  Iowa  587;  Ames  342. 
Staples  v.  Mullen,  196  Mass.  132  (bill  by 
agreed  vendor). 

It  is  better  practise,  however,  always  to  make  a 
tender,  as  it  is  sometimes  a  close  question  whether  or 
not  the  other  party  has  repudiated  the  contract. 

Smith  etc.  Co.  v.  Canady,  213  Mass.  122 
(facts  held  not  to  be  a  repudiation). 

Time  may,  however,  be  made  "of  the  essence  of  a 
contract,"  in  which  case  a  failure  to  perform  or  to 
tender  performance  at  the  time  agreed  upon  may 
result  in  a  loss  of  the  right  to  compel  the  performance 
of  the  other  party.     For  the  general  rule,  see 

Barnard  v.  Lee,  supra,  and  cases  cited. 
Boston  &  Worcester  St.  Ry.  Co.  v.  Rose, 
194  Mass.  142. 

The  time  of  performance  may  thus  be  made  "of 


59  A  strict  tender  need  not  be  made.  It  is  sufficient  if  when  the 
time  comes  the  agreed  vendee  is  able  and  prepared  to  pay  and  de- 
mands the  deed.     Cole  v.  Killam,  187  Mass.  213. 


150  EQUITY  AND  ITS   REMEDIES 

the  essence60  of  the  contract," 

a.  By  express  stipulation  to  that  effect. 

Garcin  v.  Penn.  Furnace  Co.,  186  Mass.  405 
(contract  stipulated  forfeiture  of  money 
and  all  rights  if  purchase  not  completed 
at  date  specified). 

Lloyd  v.  Rippingale,  1  Younge  &  Collyer, 

Exchequer  410;  Ames  335. 
Heckard  v.  Sayre,  34  111.  142;  Ames  340. 
But  see  Barnard  v.  Lee,  supra. 

b.  By  the  nature  of  the  subject  matter. 

Carter  v.  Phillips,  144  Mass.  100  (a  going 

business). 
Goldsmith   v.   Guild,"   10  Allen  239   (real 

estate  of  fluctuating  value). 

c.  By  reason  of  the  surrounding  circumstances. 

Tilley  v.  Thomas,  L.  R.  3.  Ch.  App.  61; 
Ames  336.  (vendee  desired  to  use  property 
at  time  specified). 

Where  time  is  of  the  essence  of  the  contract,  the 
American  rule  is  that  the  vendee  loses  what  he  has 
paid  in,  and  all  improvements  if  he  fails  to  complete 
the  contract  at  the  agreed  time. 

Keefe  v.  Fairfield,  184  Mass.  334. 
Heckard  v.  Sayre,  34  111.  142;  Ames  340. 

The  English  rule  is  contra. 

Vernon  v.  Stephens,  2  P.  Wms.  66;  Ames 
338. 


60  The  foregoing  methods  of  making  time  "of  the  essence  of  a 
contract"  are  those  set  forth  by  Lord  Justice  Turner  in  Roberts  v. 
Berry,  3  D.,  M.,  &  G.  284.  See  more  elaborate  statements  in  Bar- 
nard v.  Lee,  supra. 

61  This  case  occurred  during  the  Civil  War.  The  principal  fluc- 
tuation seems  to  have  been  in  the  gold  market. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  151 

The  failure  of  an  agreed  vendee  to  appear  at  a  tender 
or  to  offer  explanation  of  his  failure  is  equivalent  to  an 
absolute  refusal  on  his  part  to  perform  and  a  waiver 
of  his  right  to  object  to  certain  features  of  vendor's 
title,  when  sued  at  law  for  damages. 

Sleeper   v.    Nicholson,    201    Mass.    110    (a 
contract  case). 

G.  Marketable  Title. 

In  order  to  maintain  a  bill  for  specific  performance, 
an  agreed  vendor  must  show  his  title  good  beyond 
a  reasonable  doubt. 

First  A.  M.  E.  Society  v.  Brown,  147  Mass. 

296. 
Jeffries  v.  Jeffries,  117  Mass.  184. 
Sturtevant  v.  Jacques,  14  Allen  523. 
Noyes  v.  Johnson,  139  Mass.  436  (a  title  by 

adverse  possession  held  not  good  here). 
Galligan  v.  McDonald,  200  Mass.  299  (in 
which  case  title  was  found  good). 

A  title  defective  on  the  records  may  be  marketable 
if  actually  good  and  such  as  a  reasonable  purchaser 
would  accept. 

Aroian  v.  Fairbanks,  216  Mass.  215. 

Unless  all  persons  concerned  in  an  alleged  defect 
are  parties  to  the  suit,  a  court  in  equity  will  not  deter- 
mine whether  or  not  a  title  is  actually  good,  but 
whether  or  not  there  is  a  reasonable  doubt  as  to  its 
validity. 

Foster  etc.  Co.  v.  Sayles,  213  Mass.  319. 

But  if  the  facts  are  clear  and  the  dispute  is  purely 
a  question  of  law,  the  court  may  decide  whether  or 
not  the  title  is  good,  and  make  a  decree  accordingly. 
Chesman  v.  Cummings,  142  Mass.  65. 

It  is  not  necessary  that  the  vendor's  title  shall  have 


152  EQUITY  AND   ITS   REMEDIES 

been  good,  or  that  he  shall  have  had  any  title,  at  the 
time  the  agreement  was  made,  so  long  as  it  is  good  at 
the  date  agreed  upon  for  passing  papers. 

Smith  v.  Greene,  197  Mass.  16. 

Dresel  v.  Jordan,  104  Mass.  407. 

If  the  title  is  not  good  on  the  date  for  conveying, 
the  agreed  vendee  may  terminate  his  contract,  refuse 
a  deed,  and  recover  back  any  payments  he  has  made, 
in  an  action  of  contract,  without  previous  tender. 
Burk  v.  Schreiber,  183  Mass.  35. 

If  the  contract  provides  that  the  agreement  shall 
be  void  if  the  agreed  vendor  cannot  give  a  good  title, 
and  the  title  proves  to  be  defective,  the  agreed  vendee 
has  no  equitable  rights  against  the  agreed  vendor. 

Old  Colony  Trust  Co.  v.  Chauncey,  214  Mass. 
271. 

H.  Mutuality. 

Equity  will  not  ordinarily  compel  one  party  to 
perform  a  contract  if  at  the  time  performance  is  asked 
the  only  remedy  of  the  other  party  is  a  suit  for  damage 
at  law. 

Prof.  Ames  in  3  Columbia  Law  Rev.  1. 
Flight  v.  Bolland,  4  Russell  299;  Ames  422 
(Relief  denied  infant  seeking  to  compel 
adult  to  convey,  for  infant  having  paid 
money  could  rescind  and  recover). 
Clayton  v.  Ashdown,  9  Viner's  Abr.  393; 
Ames  421.  (But  after  infant  is  of  age  he 
may  enforce). 

The  rule  as  sometimes  stated  is  that  the  contract, 
to  be  enforced  in  equity,  must  be  such  that,  at  the 
time  the  bill  was  brought,  it  was  enforceable  by  either 
party. 

Putnam  v.  Grace,  161  Mass.  237,  at  247. 

Norris  v.  Fox,  45  Fed.  Rep.  406;  Ames  426. 


SPECIFIC   PERFORMANCE   OF   CONTRACTS  153 

(Plaintiff  who  had  agreed  to  "procure  a 
warranty  deed"  for  defendant  from  an- 
other, got  title  and  brought  bill.  No 
enforcement  because  defendant  could  not 
compel  at  time  of  contract.) 62 

The  defense  has  no  application  to  unilateral  con- 
tracts or  to  bilateral  contracts  where  the  plaintiff 
has  furnished  the  consideration  or  offers  to  do  so  at 
the  time  of  performance. 

Howe  v.  Watson,  179  Mass.  30;  Ames  429. 
(Agreement  of  defendant's  intestate  to 
leave  all  her  property  to  plaintiff,  if  plain- 
tiff would  care  for  her  till  death,  which 
plaintiff  did.  Specific  performanpe). 
Smith  v.  Greene,  197  Mass.  16  (agreed 
vendor  need  not  have  a  good  title  at  the 
time  agreement  is  signed). 

Nor  does  it  apply  where  the  plaintiff  is  not  bound  in 
writing  (in  a  case  within  the  Statute  of  Frauds)  and 
but  for  the  offer  in  his  bill  could  not  be  held  to  per- 
formance on  his  part. 

Mansfield  v.  Hodgdon,  147  Mass.  304. 
Hatton  v.  Gray,  2  Cas.  in  Ch.  164;  Ames  421. 
O'Brien  v.  Boland,  166  Mass.  481;  Ames  433. 
(Option  for  ten  days  to  buy  land,  under 
seal,  and  therefore  an  irrevocable  covenant ; 
accepted  by  plaintiff.  Enforceable  by 
him). 

An  agreement  enforceable  by  either  party  upon  its 
acceptance  within  a  time  specified,  is  not  void  for 
want  of  mutuality. 

O'Brien  v.  Boland,  166  Mass.  481. 

It  is  sometimes  said  that  the  right  of  a  plaintiff  to 


62  The  reason  here  might  well  have  been  that  the  defendant  never 
could  enforce  an  agreement  to  procure  a  warranty  deed  from  another. 


154  EQUITY  AND  ITS   REMEDIES 

enforce  specific  performance  against  a  defendant  in 
certain  cases  (as,  for  example,  in  the  case  of  a  vendor 
of  land  against  a  vendee)  is  dependent  on  the  defend- 
ant's right  against  the  plaintiff  and  therefore  rests 
on  the  doctrine  of  mutuality.  This  is  unsound.  The 
doctrine  is  really  a  defense.  It  is  the  lack  of  mutuality 
that  defeats  the  right  of  action.  The  true  reason 
affording  the  remedy  is  that  at  law  the  vendor  could 
recover  M  only  the  excess  of  the  agreed  price  over  the 
market  value,  and  his  land  remains  unsold. 

Old  Colony  R.R.  v.  Evans,  6  Gray  25. 

I.  Necessity  and   Adequacy  of  Consideration. 

It  is  ordinarily  said  that  where  one  agrees  to  make 
a  gift,64  though  the  agreement  is  under  seal  or  recites  a 
consideration,68  equity  will  not  enforce  it  unless  there 
has  been  such  part  performance  as  to  require  it. 

Jefferys  v.  Jefferys,  Craig  &  Phillips  139; 
Ames  261. 

Inadequacy  of  consideration  unless  it  "shocks  the 
conscience"  is  not  of  itself  ground  for  refusing  specific 
performance. 

Lord  Eldon  in  Coles  v.  Trecothick,  9  Vesey 
234. 

Lee  v.  Kirby,  104  Mass.  420. 
Nickerson  v.  Bridges,  216  Mass.  416. 


68  When  the  vendor  has  conveyed  land,  he  cannot  collect  in  equity. 
He  is  then  merely  an  unsecured  creditor.  Before,  by  the  doctrine 
of  conversion,  he  was  in  a  position  like  that  of  a  mortgagee. 

«*But  in  Ferry  v.  Stephens,  66  N.  Y.  321;  Ames  262;  a  man 
agreed  to  sell  land  to  his  sister,  and  she  to  buy,  for  $1100;  but  the 
consideration  was  fictitious.  He  indorsed  the  receipt  of  the  $1100 
on  the  agreement.  He  died  devising  land  to  another.  Held  that 
as  parol  evidence  was  not  admissible  to  vary  the  terms  of  the  original 
contract,  it  bound  both;  and  as  nothing  remained  to  be  done  but 
convey,  specific  performance  was  ordered. 

65  As  to  the  enforceableness  of  an  option  under  seal,  where  there 
is  no  consideration,  see  O'Brien  v.  Boland  (under  Mutuality,  supra). 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  155 

J.  Sundry    Defenses,    and    Incidents    of    the 
Remedy. 
A  bill  in  equity  for  specific  performance  of  a  con- 
tract which  equity  will  enforce  is  not  inconsistent  with 
a  suit  at  law  for  the  same  cause,  but  is  alternative. 
Both  affirm  the  contract.    But  the  plaintiff  ultimately 
may  be  required  to  elect  between  his  remedies. 
Connihan  v.  Thompson,  111  Mass.  270. 
Miller  v.  Hyde,  161  Mass.  472. 

It  is  a  good  defense  to  a  bill  for  specific  performance 
that  the  contract  was  obtained  by  mistake,  fraud, 
misrepresentation  or  concealment. 

Kurinsky  v.  Lynch,  201  Mass.  28  (agreed 
vendor  may  defend  on  ground  of  fraudu- 
lent concealment  of  real  purchaser). 
Breed  v.  Berenson,  216  Mass.  397  (agreement 
of  attorneys  to  divide  fees  not  enforced 
because  of  representations  made  as  a  basis 
for  agreement). 
Mansfield  v.  Sherman,  81  Maine  365;  Ames 

385  (mistake  of  agreed  vendor). 
Ames,  pps.  351-373. 

Such  misrepresentations  as  prevents  the  plaintiff 
from  coming  into  a  court  with  clean  hands  is  a  bar 
to  relief . 

Chute  v.  Quincy,  156  Mass.  189. 

Cadman  v.  Horner,  18  Vesey  10;  Ames  351. 

But  such  misrepresentations  must  not  be  too 
indefinite. 

Scott  v.  Hanson,  1  Simons  13;  Ames  353. 

In  equity,  intentional  misrepresentation  by  the 
plaintiff  made  for  the  purpose  of  deceiving,  and  relied 
upon,  may  be  a  good  defense,  though  the  defendant 
suffered  no  damage. 

Kelly  v.  Central  Pacific  R.R.  Co.,  74  Cal. 
557;  Ames  355  (damage  to  a  third  person). 


156  EQUITY  AND  ITS   REMEDIES 

But  in  the  absence  of  fraud,  the  mere  fact  that  the 
price  at  which  the  agreed  vendor  has  contracted  to 
sell  is  a  low  one,  is  no  defense. 

Nickerson  v.  Bridges,  216  Mass.  416. 

If  the  plaintiff  has  misrepresented,  he  cannot  en- 
force in  part. 

Clermont  v.  Tasburgh,  1  J.  &  W.  112;  Ames 
358. 

If  an  agreement  has  been  made  by  an  agent,  its 
specific  performance  against  the  alleged  principal  is 
dependent  on  the  agent's  authority. 

Harrigan  v.  Dodge,  216  Mass.  461. 

Record  v.  Littlefield,  218  Mass.  483. 

If  an  agreement  specifies  that  property  is  to  be 
delivered  free  of  tenants,  the  vendor  cannot  enforce 
specific  performance  if  the  property  is  not  free  of 
tenants  on  the  date  set. 

Howe  v.  Conley,  16  Gray  552. 

That  an  agreement  does  not  comply  with  the 
requirements  of  the  Statute  of  Frauds  is,  of  course, 
a  good  defense. 

See  Statute  of  Frauds  —  Part  Performance 

(supra). 
Tobin  v.  Larkin,  183  Mass.  389. 
Nickerson  v.  Bridges,  216  Mass.  416. 

The  absence  of  a  proper  tender  by  the  plaintiff 
may  be  a  good  defense. 

Smith  &  Rice  Co.  v.  Canady,  213  Mass.  122. 
But  see  Tobin  v.  Larkin,  183  Mass.  389. 

The  fact  that  the  defendant  is  not  the  owner  of  the 
real  estate  in  controversy  is  a  matter  of  defense,  when 
the  agreed  vendee  brings  the  bill.     The  plaintiff  in 
such  case  need  not  allege  the  defendant's  ownership. 
Harrigan  v.  Dodge,  200  Mass.  357. 


SPECIFIC  PERFORMANCE  OF  CONTRACTS  157 

But  unless  the  plaintiff's  bill  alleges,  in  elucidation 
of  an  ambiguous  memorandum,  data  identifying  prop- 
erty, the  bill  is  demurrable. 

Harrigan  v.  Dodge,  200  Mass.  357. 

Where  one  conveys  to  another  on  an  oral  promise 
to  re-convey,  the  Statute  of  Frauds  is  a  good  defense 
to  a  bill  for  specific  performance,66  but  the  value  of 
the  land  may  be  recovered  at  law. 

Cromwell  v.  Norton,  193  Mass.  291. 

See  Creedon  v.  Mahoney,  193  Mass.  402. 

One  who  breaks  an  agreement  to  buy  by  failing  to 
pay,  cannot  recover  what  he  has  paid  if  the  other 
party  is  ready  to  perform. 

Keefe  p.  Fairfield,  183  Mass.  334. 

Where  an  agreement  specifies  that  on  the  failure  to 
make  certain  payments  it  shall  become  void,  the 
vendee  cannot  by  default  avoid  payment.  The 
option  is  that  of  the  vendor. 

Meagher  v.  Hoyle,  173  Mass.  577. 


66  But  if  there  has  been  no  delivery,  the  deed  may  be  cancelled  as 
a  cloud.    Creeden  v.  Mahoney,  193  Mass.  402  (semble). 


158  EQUITY  AND  ITS  REMEDIES 


CHAPTER  VIII. 

INJUNCTIONS. 

A.  Generally. 

B.  Restraining  Legal  Prooceedings  and  Judg- 

ments. 

C.  Restraining    Illegal    Acts    op    Public    or 

Corporation  Officials. 

A.   Generally. 

An  injunction  is  a  judicial  order,  operating  in 
personam,  requiring  a  party  to  do  or  to  abstain  from 
doing  a  particular  act.  Injunctions  requiring  the 
doing  of  acts  are  mandatory;  those  requiring  the  ab- 
staining from  doing  acts  are  prohibitive. 

An  injunction  may  be  either  a  final  remedy  or  inter- 
locutory relief.  In  the  former  case  it  is  a  final  decree 
and  is  perpetual;  in  the  latter  it  is  an  interlocutory 
decree  (or  an  order  or  writ)  usually  for  the  purpose  of 
requiring  the  subject  matter  to  be  preserved  in  statu 
quo  during  litigation. 

It  is  fundamental  that  the  restraining  power  of 
equity  extends  through  the  whole  range  of  rights  and 
duties  and  would  be  applied  in  every  case  of  intended 
violation  were  it  not  for  certain  reasons  of  expediency 
and  policy,  such  as  the  completeness  and  adequacy 
of  the  legal  remedy. 

Pomeroy,  sec.  1338. 

As  a  rule,  American  courts  will  not  restrain  purely 
personal  torts,  without  violation  of  property  right. 
Where  no  breach  of  trust  or  of  contract  appears,  a 
bill  in  equity  will  not  lie  (in  Massahusetts)  to  enjoin 
the  publication  of  libelous  statements  injurious  to  the 
plaintiff's   business,    trade,    or   profession   or   which 


INJUNCTIONS  159 


operate  as  a  slander  of  his  title  to  property.1 

Finnish  Temperance  Soc.  v.  Raivaaja  Pub. 

Co.,  219  Mass.  28  (libel). 
Boston  Diatite  Co.  v.  Florence  Mfg.  Co.,  114 

Mass.  69. 

Worthington  v.  Waring,  157  Mass.  421  (as 
to  the  right  of  a  former  employee  to 
restrain  blacklisting.  See  discussion  of 
the  case  in  Burnham  v.  David,  217  Mass. 
35). 

Among  the  principal  uses  of  the  injunctive  form  of 
decree  are 

1.  To  restrain  legal  proceedings  and  judgments. 

See  Section  B  in  this  chapter. 

2.  To  restrain  illegal  acts  by  public  or  corporation 
officials. 

See  Section  C  in  this  chapter. 

3.  To  enforce  negative  contracts. 

See  Chapter  VII,  Sections  B  and  C. 

4.  To  restrain  torts. 

See  Chapter  I X. 

5.  To  restrain  violation  of  equitable  rights, 
particularly  rights  under  trusts. 

(Not  treated  in  this  book.  See  any  text- 
book on  Trusts). 

6.  To  enforce  duties  created  by  statute. 

7.  To  preserve  (by  interlocutory  decree)  the 
subject  matter  of  litigation  in  statu  quo  pending 
a  final  decree.  This  is  procedural  rather  than 
a  matter  of  substantive  law. 


1  The  contra  appears  to  be  the  rule  in  England.  See  also  Stevens 
v.  Rockport  Granite  Co.,  216  Mass.  486,  where  noise  was  enjoined 
as  an  "invasion  of  the  right  to  comfortable  living." 


160  EQUITY  AND  ITS   REMEDIES 

B.  Restraining  Legal  Proceedings  and 
Judgments. 

The  restraining  of  legal  proceedings  and  judgments 
was  one  of  the  first  important  branches  of  equity 
jurisdiction. 

See  1  Lord  Campbell's  Lives  of  the  Chan- 
cellors 235,  or  1  Hallam's  Const.  History 
472,  for  full  account  of  contest  between 
equity  and  law,  and  its  settlement  under 
James  I. 

Equity  interferes  with  actions  or  judgments  at  law 
only  when  the  complainant  has  an  equitable  defense 
not  available  at  law,  or  a  good  defense  at  law  which 
he  was  prevented  from  using  through  fraud  or  acci- 
dent, unmixed  with  negligence  of  himself  or  his  agent. 

Hendrickson  v.  Hinckley,  17  Howard  443. 
Dehon  v.  Foster,  4  Allen  545. 
Payson  v.  Lamson,  134  Mass.  593. 
Moors  v.  Ladenburg,  178  Mass.  272. 
Piatt  v.  Woodruff,  61  N.  Y.  378. 

The  necessity  for  interference  in  the  first  of  the 
foregoing  classes  is  largely  eliminated  by  statutes  per- 
mitting equitable  defenses  in  suits  at  law. 

See  Mass.  Rev.  Laws,  ch.  173,  sees.  28  and 
32;  Mass.  St.  1913  ch.  307. 

But  resort  to  an  injunction  may  be  necessary  to 
obtain  "equitable  set  off"  of  judgments. 

Cromwell  v.  Parsons,  219  Mass.  299  (against 
holder  of  execution  and  sheriff  to  enjoin 
collection  of  execution  unless  plaintiff's 
claim  is  set-off). 

Omission  to  present  at  law  some  legal  defense,  and 
failure  to  succeed  at  law  through  ignorance,  negligence 
or  mistake  of  counsel,  are  not  grounds  for  equitable 
interference. 


INJUNCTIONS  161 


Emerson  Udall,  13  Vermont  477. 

Payson  v.  Lamson,  134  Mass.  393. 

Mayor  of  New  York  v.  Brady,  115  N.  Y. 

599  at  616. 
Ames  Cases,  4  (note). 

Since  equity  acts  in  personam,  a  court  may  restrain 
one  within  its  jurisdiction  from  prosecuting  a  suit  in 
another  state  or  country,  if  he  is  thereby  taking  an 
inequitable  advantage  of  another. 

Kempson  v.  Kempson,   58  N.  J.   Eq.  94; 
&  Ames  26. 

Dehon  v.  Foster,  4  Allen  545. 

(Where  A  was  enjoined  from  prosecuting 
an  action  in  another  state  against  B,  a 
Mass.  insolvent,  whose  property  there  A 
had  attached.  This  would  have  operated 
to  prevent  property  coming  to  B's  Massa- 
chusetts assignee). 

Sundry  cases  in  note,  Ames  28. 

But  such  restraint  will  not  be  made  simply  because 
the  interpretation  of  the  law  by  the  highest  court 
of  the  other  state,  relative  to  the  subject  matter,  is 
different  from  that  of  the  Local  or  the  Federal  Supreme 
Court. 

Carson  v.  Dunham,  149  Mass.  52. 

(General  rule  that  court  first  getting  juris- 
diction holds  it.  Dunham's  right  to  use 
South  Carolina  courts  was  as  good  as 
Carson's  right  to  use  Mass.  or  U.  S. 
courts). 

The  federal  courts  will  not  enjoin  proceedings  in 
the  state  courts  except  under  bankruptcy  or  other 
special  federal  statutes,  or  in  order  to  render  effective 
their  own  decrees;  nor  as  a  rule  will  one  court  enjoin 
proceedings  in  another  of  co-ordinate  jurisdiction. 

Peck  v.  Jenness,  7  How.  612  (cited  in 


162  EQUITY   AND   ITS    REMEDIES 

Hill  Man.  Co.  v.  Prov.  &  N.  Y.  S.  Co.,  113 
Mass.  495). 

Fumald  v.  Glenn,  64  Fed.  Rep.  49. 

U.  S.  v.  Parkhurst-Davis  Mercantile  Co., 
176  U.  S.  317. 

Riverdale  Cotton  Mills  v.  Alabama  &  G. 
Mfg.  Co.,  198  U.  S.  188. 
(Defendant  defeated  in  the  federal  courts 
in  Alabama  after  ten  years'  fight,  brought 
bill  in  state  court  attacking  efficacy  of 
decrees  of  federal  court  on  ground  of 
jurisdiction  to  which  it  had  already  sub- 
mitted. Federal  court  enjoined  the  liti- 
gation to  make  effective  its  own  decree). 

Old  Dominion  Copper  Co.  v.  Bigelow,  203 
Mass.  159  (see  sundry  temporary  in- 
junctions, in  description  of  proceedings). 

U.  S.  Comp.  Stat.  1901,  sec.  720. 

Injunctions  relating  to  suits  at  law  are  directed  to 
the  litigants,  and  not  to  the  judges  of  the  law  courts. 
Although  jurisdiction  depends  on  the  litigants, 
the  Massachusetts  court  has  restrained  a  suit  between 
two  non-residents  concerning  subject  matter  here,  by 
a  decree  against  the  plaintiff  in  the  law  suit  and  his 
agents,  with  service  ordered  on  his  resident  attorney. 

Moors  v.  Ladenburg,  178  Mass.  272. 

Even  though  the  parties  have  been  enjoined  from 
proceeding,  a  judgment  obtained  in  violation  of  the 
injunction  is  valid  at  law. 

Winston  v.  Westfeldt,  22  Ala.  760;  Ames  3. 

C.  Restraining    Illegal    Acts     op    Public    or 
Corporation  Officials. 

The  legal  remedy  of  quo  warranto  is  usually  suf- 
ficient to  test  the  right  to  a  public  office  or  to  a 


INJUNCTIONS  163 


corporation  office  or  membership2  of  one  who  claims 
to  hold  it;  and  the  legal  remedy  of  mandamus  suf- 
ficient to  compel  the  reinstatement  of  officials  im- 
properly removed,  to  obtain  a  view  of  corporation 
books,  and  to  obtain  relief  from  violations  of  law. 

Varney  v.  Baker,  194  Mass.  239  (mandamus 
to  compel  books  to  be  shown). 

Andrews  v.  Mines  Corporation,  205  Mass. 
121. 

Aspinwall  v.  Boston,  191  Mass.  441. 

Longyear  v.  Hardman,  219  Mass.  405  (man- 
damus against  one  acting  as  director; 
good  general  discussion). 

Walworth  v.  Cassassa,  219  Mass.  20  (to 
test  town  solicitor's  office). 

The  remedies  of  mandamus  and  certiorari  are  ample 
where  one  threatens  to  perform  a  statutory  duty 
wrongly. 

Moneyweight  Scale  Co.  v.  McBride,  199 
Mass.  503;  s.  c.  223  U.  S.  749. 

Equity  courts  may,  however,  restrain  illegal  acts 
of  public  or  corporation  officials  where  such  acts  tend 
to  produce  irreparable  injury,  to  create  a  cloud  on 
title3  or  to  give  rise  to  multiplicity  of  suits. 

Von  Arnim  v.  American  Tube  Works,  188 
Mass.  515  (excessive  compensation  taken 
by  directors). 

Granara  v.  Italian  Cath.  Cem.  Ass'n,  218 
Mass.  387  (illegal  issuance  of  shares). 

Moneyweight  Scale  Co.  v.  McBride,  199 
Mass.  503  (enjoining  action  under  uncon- 
stitutional statute). 


2  But  the  unlawful  expulsion  of  a  member  of  a  voluntary  asso- 
ciation may  be  restrained  by  injunction. 

3  But  not  if  the  remedy  by  writ  of  entry  is  adequate.     Preston 
v.  Newton,  213  Mass.  483. 


164  EQUITY  AND  ITS   REMEDIES 

Small  v.  Cahoon,  207  Mass.  359  (to  restrain 

removal  of  church  under  illegal  vote). 
Kelley  v.  Sullivan,  201  Mass.  34  (by  member 
of  lodge  to  restrain  purchase  of  land  in 
violation  of  by-law). 
Greene  v.  Fitchburg  219  Mass.   121   (by  ice 
dealer  to  restrain  city  from  illegally  fixing 
ice  prices.) 
Pomeroy,  sec.  1345  (see  note,  for  collection 
of  cases). 
The  corporation4  is  the  proper  plaintiff  in  such  a 
case;  but  if  sufficient  demand  has  been  made  on  it 
by  a  stockholder,  or  if  such  a  demand  if  made  would 
obviously  be  futile,  a  stockholder  may  bring  suit  in 
his  own  name. 

Brewer  v.  Boston  Theatre,  104  Mass.  378. 
Bartlett  v.  N.  Y.,  N.  H.  &  H.  RR.   Co. 

221  Mass.  530  (inefficient  demand). 
Von  Arnim  v.  American  Tube  Works,   188 

Mass.  515. 
Granara  v.  Italian  Cath.  Cem.   Ass'n,  218 
Mass.  387. 
The  right  to  restrain  illegal  appropriations  of  money 
by  cities  and  towns  does  not  fall  within  general  equity 
jurisdiction,  but  is  regulated  by  statute. 

Prince  v.  Crocker,  166  Mass.  347  (attempt 

to  restrain  Boston  Transit  Commission). 
Mass.  Rev.  Laws,  ch.  25,  sec.  100  (permitting 
ten  taxable  inhabitants  to  apply  to  enjoin 
town  from  illegal  expenditure). 
Oliver  v.  Gale,  182  Mass.  39  (under  Rev. 

Laws,  ch.  25,  sec.  100). 
Mass.  Rev.  Laws,  ch.  27,  sec.  26  (permitting 
bill  to  restrain  illegal  excess  of  debt  limit.) 


*  Under  similar  circumstances,  a  bond  holder  may  sue  if  the  trustee 
for  the  bondholders  has  failed,  on  request,  to  act.  Young  v.  Haviland, 
215  Mass.  120. 


REPARATION  AND  PREVENTION  OF  TORTS     165 


CHAPTER  IX. 

INJUNCTIONS  —  SPECIFIC     REPARATION 
AND  PREVENTION  OF  TORTS. 

A.  Waste. 

B.  Trespass  and  Disturbance  of  Easements. 

C.  Nuisance. 

D.  Infringement   of   Patents,   Copyrights   and 

Trademarks.    Unfair  Competition. 

E.  Interference  with  Business  or  Contract. 

A.   Waste. 

Waste  is  an  unreasonable  or  improper  use,  abuse, 
mismanagement,  or  omission  of  duty,  touching  real 
estate,  by  one  rightly  in  possession  thereof,  which 
results  in  substantial  injury. 

Delano  v.  Smith,  206  Mass.  365  (general 
discussion  of  waste). 

Pynchon  v.  Stearns,  11  Met.  304  (acts  do  not 
amount  to  actionable  waste  unless  "pre- 
judicial to  the  inheritance,"  etc.) 

At  common  law1  one  immediately  entitled  to  an 
estate  of  inheritance  (but  no  other)  might  have  a 


1  The  common  law  jurisdiction  has  been  extended  by  statute 
in  Massachusetts  so  as  to  afford  relief  to  persons  having  the  next 
immediate  estate  of  inheritance  or  remainder,  or  reversion  in  fee 
simple  or  fee  tail,  after  an  intervening  estate  for  life,  and  to  a  re- 
mainderman or  reversioner  for  life  or  for  years  against  a  tenant  in 
dower,  by  curtesy,  for  life  or  for  years.  Rev.  Laws,  ch.  185.  And 
the  statute  gives  one  treble  damages  for  waste  by  a  co-tenant  or 
joint  tenant,  who  has  not  given  thirty  days'  notice.  It  is  held  not 
to  apply,  however,  where  the  defendant  claims  sole  ownership. 
Jenkins  v.  Wood,  145  Mass.  494. 


166  EQUITY  AND   ITS   REMEDIES 

remedy  by  an  action  of  waste,  as  in  the  case  of  a  land- 
lord against  his  tenant. 

Pomeroy,  sec.  1348. 

But  waste  may  be  restrained  in  equity  though  the 
plaintiff  has  an  estate  less  than  an  estate  of  inherit- 
ance.2 

Mollineaux  v.  Powell,  3  P.  Wms  268;  Ames 

468.  (by  tenant  for  life). 
Delano  v.  Smith,  206  Mass.  365  (by  mort- 
gagee). 
And  cases  cited  infra. 

And  in  general  the  basis  of  relief  in  waste  is  the 
irreparable  injury  to  the  property  concerned. 

Attaquin  v.  Fish,  5  Met.  140  (good  discussion, 
but  no  remedy  on  facts). 

Clark  v.  Holden,  7  Gray  8  (cutting  timber 
may  be  waste,  though  to  do  so  is  good 
husbandry). 

Delano  v.  Smith,  206  Mass.  365  (use  as  small- 
pox hospital  may  be). 

Hawley  v.  Clowes,  2  Johns  Ch.  122;  Ames 
484  (cutting  timber). 

Small  v.  Cahoon,  207  Mass.  359  (removal  of 
building). 

Whitfield  v.  Benit,  2  P.  Wms  240;  Ames  460 
(taking  minerals). 

Peters  v.  Stone,  193  Mass.  179  (to  restrain 
removal  of  poultry  building  claimed  by 
defendant  as  personalty). 

Poerther  v.  Russell,  33  Wise.  193  (removal  of 
mill  machinery). 


2  Pomeroy  says  an  injunction  will  lie  in  nearly  all  cases  where 
a  legal  action  would  lie  to  recover  possession  of  land  wasted,  or  to 
obtain  damages.  Pomeroy,  sec.  1348.  It  lies  between  co-tenants. 
Hawley  v.  Clowes,  2  Johns.  Ch.  122;  Ames  484. 


REPARATION  AND  PREVENTION  OF  TORTS     167 

Brock  v.  Dole,  66  Wise.  140  (erecting  chim- 
ney). 

Baugher  v.  Crane,  27  Md.  36  (changing 
character  of  building). 

Cannon  v.  Barney,  59  Miss.  289  (dismant- 
ling ginhouse). 

West  Ham  Board  v.  E.  London  Co.,  (1900) 
1  Ch.  624  (covering  land  with  rubbish). 

In  some  jurisdictions  non-payment  of  taxes  by  a 
tenant  for  life  is  waste.     In  Massachusetts,  the  neglect 
of  a  life  tenant  to  insure  is  not  waste,  however. 
Stetson  v.  Day,  51  Maine  434. 
Harrison  v.  Pepper,  166  Mass.  288  (neglect 
to  insure). 

A  common  application  of  the  equitable  remedy3 

for  waste  is  in  decrees  upon  bills  brought  to  restrain 

mortgagors  from  impairing  the  property  mortgaged.4 

Thompson  v.  Hey  wood,  129  Mass.  401. 

Brady  v.  Waldron,  2  Johns.  Ch.  148;  Ames 

483. 

Equity  may  enjoin  waste  though  the  property  is 
held  by  a  life  tenant  "without  inpeachment  of  waste." 
Attaquin  v.  Fish,  5  Met.  140. 

But  equity  will  not  ordinarily  enjoin 

a.    "Permissive"    waste;  i.    e.    mere   neglect   to 
repair. 

Castlemain  v.  Craven,  22  Viner's  Abr.  523; 
Ames  466. 


8  For  a  full  discussion  of  cases  in  which  equity  will  protect  and 
enforce  legal  rights  in  real  estate,  see  Hart  v.  Leonard,  42  N.  J.  Eq. 
416;  Ames  549. 

4  But  the  mortgagee  has  a  remedy  at  law  in  trover  against  the 
mortgagor,  or  one  who  takes  from  him,  to  recover  damages  for  por- 
tions of  the  property  that  have  been  wrongfully  severed  and  con- 
verted. Searle  v.  Sawyer,  127  Mass.  491.  But  see  Southbridge 
Savings  Bank  v.  Mason,  147  Mass.  500  (in  equity). 


168  EQUITY  AND   ITS   REMEDIES 

b.  A  technical  waste  with  little  or  no  damage. 

Mollineaux  v.  Powell,  3  P.  Wms.  268;  Ames 
468. 

c.  "Ameliorating"    waste.    A    technical    waste 
which  improves  the  inheritance. 

Doherty  v.  Allman,  L.  R.  3  App.  Cases  709; 
Ames  462  (a  tenant  altered  storehouses  to 
dwellings  to  suit  changed  character  of 
neighborhood). 

Pynchon  v.  Stearns,  11  Met.  304  (opening 
ways,  digging  drains,  erecting  houses,  etc.) 

Nor  will  equity  enjoin  the  mere  injuring  of  the 
reputation  of  property. 

Delano  v.  Smith,  206  Mass.  365. 

Equity    having    obtained    jurisdiction    to    enjoin 
against  waste  will  ordinarily  award  damages  also. 
Pomeroy,  sec.  237. 
In  re  Leeds  Woolen  Mills,  129  Fed.  Rep.  922. 

B.  Trespass. 

Trespass  is  a  wrongful  interference  with  the  posses- 
sion of  property  by  one  not  in  possession,  or  not 
rightfully  in  possession.6 

Equity  will  not  restrain  a  single  act  of  trespass  to 
property,  temporary  in  nature  and  resulting  in  only 
nominal  damage. 

Gates  v.  Johnston  Lumber  Co.,  172  Mass. 
495;  Ames  520  (to  restrain  purchaser  from 
removing  bricks  from  plaintiff's  land  later 
than  agreed  time). 

But  if  the  act  threatened  is  such  as  to  destroy  the 


5  The  jurisdiction  in  equity  to  enjoin  in  the  case  of  trespass  is 
a  recent  development.  There  are  few  reported  cases  prior  to  1800. 
For  growth  of  the  jurisdiction,  see  cases  in  Ames,  pp.  486-499,  espe- 
cially Lowndes  v.  Beetle,  33  L.  J.  Ch.  451;  Ames  499. 


REPARATION  AND  PREVENTION  OF  TORTS     169 

property  or  to  cause  irreparable  damage,  then  equity 
will  restrain  it. 

Richards  v.  Dower,  64  Cal.  62;  Ames  517 

(tunneling  under  land). 
Erhardt  v.  Boaro,  113  U.  S.  537;  Ames  507 

(taking  ores  from  mine). 
Lowndes  v.  Beetle,  33  L.  J.   Ch.  451;   Ames 

499  (cutting  timber). 
Echelkamp  v.  Schrader,  45  Mo.  505;  Ames 

511  (removal  of  building). 

If  there  has  been  repetition  of  an  act  of  trespass  and 

further  repetition  is  threatened,  although  the  act  is 

one  resulting  in  only  nominal  damage,  there  may  be 

an  injunction  so  as  to  avoid  repeated  actions  at  law.8 

•     Boston  &  Maine  R.R.  v.  Sullivan,  177  Mass. 

230  (repeated  trespass  by  hackman). 

So,  too,  a  trespass,  continuous  in  its  nature,  may  be 
enjoined. 

Szathmary  v.  B.  &  A.  R.R.  Co.,  214  Mass.  42 

(abutment  wall). 
Goodson  v.  Richardson,  L.  R.  9  Ch.  App. 
221;  Ames    502    (laying    pipes    through 
land). 

Wheelock  v.  Noonan,  108  N.  Y.  179;  Ames 
527  (mandatory  injunction  to  compel  re- 
moval of  large  pile  of  stone  from  plaintiff's 
land)7 

Tucker  v.  Howard,  128  Mass.  361;  Ames  548 
(obstruction  of  plaintiff's  way  by  wall  of 
building). 


•  When  an  injunction  is  asked  for  on  this  ground,  it  is  true  in 
most  jurisdictions  that  irreparable  damage  need  not  be  an  element, 
except  so  far  as  it  is  implied  from  the  repeated  assaults  upon  one's 
rights. 

7  But  there  will  be  no  injunction  to  restrain  one  from  trespassing, 
to  remove  his  own  property.  Gates  v.  Johnston  Co.,  172  Mass. 
495;  Ames  520. 


170  EQUITY  AND  ITS  REMEDIES 

The  projection  of  a  structure  over  another's  line  is 
a  continuing  trespass.  An  injunction  against  its 
continuance  is  granted,8  notwithstanding  the  hardship 
to  the  defendant  and  in  spite  of  only  nominal  damage 
to  the  plaintiff.  Otherwise  the  wrongdoer  might 
deprive  the  other  of  his  land  without  his  consent  or 
obtain  as  easement  therein.9 

Tucker  v.  Howard,  128  Mass.  361 ;  Ames  548. 

Curtis  Mfg.  Co.  v.  Spencer  Wire  Co.,  203 
Mass.  448  (disproportionate  expense  to 
defendant  no  defense). 

Milton  v.  Puffer,  207  Mass.  416. 

Kershishian  v.  Johnson,  210  Mass.  135. 

Szathmary  v.  B.  &  A.  R.R.  Co.,  214  Mass. 
42  (railroad  abutment  a  few  inches  over 
line). 

Brooks  v.  Rosenbaum,  217  Mass.  172  (founda- 
tion stones.  Relief  against  tenant,  who 
put  them  there,  but  not  against  owner  of 
building). 

But  in  such  cases  where  there  is  extreme  hardship 
to  a  defendant  innocent  of  wrongful  intent,  an  injunc- 
tion may  be  refused  where  the  plaintiff's  interest  is  a 
short  tenancy  and  he  suffers  only  nominal  damage. 

Lynch  v.  Union  Inst,  for  Sav.,  158  Mass.  394 
(expensive  vaults  built  by  defendant  over 
few  feet  of  premises  leased  by  plaintiff). 

Brande  v.  Grace,  154  Mass.  210  (structure 


8  In  Brooks  v.  Rosenbaum,  217  Mass.  172,  there  was  a  decree 
against  a  tenant  who  had  built  over  the  line,  ordering  him  to  remove 
the  foundation  or  pay  certain  damages.  As  the  plaintiff  did  not 
appeal  from  the  decree,  it  was  thus  allowed  to  stand.  See  this  case 
also  for  a  discussion  of  the  right  to  relief  against  the  owner  of  the 
reversion,  where  the  tenant  builds  over  the  line. 

9  This  would  be  unconstitutional.  These  abutment  cases  are 
sometimes  classed  under  nuisance  rather  than  trespass.  The  Mass- 
achusetts Supreme  Court  uses  both  designations.  See  Curtis  Mfg. 
Co.  v.  Spencer  Wire  Co.,  cited  in  text. 


REPARATION  AND  PREVENTION  OF  TORTS     171 

cutting  off  show-windows  of  short  term 
tenant). 

Harrington  v.  McCarthy,  169 'Mass.  492 
(foundations  of  building). 

Hunter  v.  Carroll,  64  N.  H.  572;  Ames  529 
(two  houses  innocently  built  over  disputed 
line  on  strip  worth  ten  dollars.  No 
injunction  unless  defendant  refused  to  pay 
plaintiff  fifteen  dollars  for  the  land). 

One  may  not  ordinarily  have  an  injunction  against 
a  defendant  in  possession  in  order  to  remove  a  cloud 
from  a  title  or  to  recover  land,  a  writ  of  entry  being 
sufficient;  although  if  a  suit  at  law  is  pending  a 
temporary  injunction  may  issue,  restraining  injury 
to  the  property. 

Preston  v.  Newton,  213  Mass.  483. 

Deere  v.  Guest,  1  Mylne  &  Craig  516;  Ames 

492. 
Erhardt  v.  Boaro,  113  U.  S.  537;  Ames  507. 

Indeed,  where  the  title  to  real  estate  is  in  dispute 
it  has  been  held  that  in  order  that  the  plaintiff  may 
prevail  in  equity  it  must  appear  that  he  has  caused 
his  rights  to  be  determined  at  law,  or  that  the  defend- 
ant is  insolvent,  or  that  the  plaintiff  would  be  injured 
unless  the  relief  is  granted. 

Washburn  v.  Miller,  117  Mass.  376;  Ames 
515  (defendant  claimed  right  of  way  over 
plaintiff's  property). 

Slater  v.  Gunn,  170  Mass.  509  (extending 
Washburn  v.  Miller). 

Hart  v.  Leonard,  42  N.  J.  Eq.  416;  Ames 
549  (good  discussion). 

The  modern  tendency,  however,  is  to  enlarge  the 
jurisdiction  of  equity  in  such  cases. 

Boston  &  Maine  R.R.  v.  Sullivan,  177  Mass. 
230. 


172  EQUITY  AND  ITS  REMEDIES 

Goodson  v.  Richardson,  L.  R.  9  Ch.  App.  221; 
Ames  502. 

Billings  v.  Mann,  156  Mass.  203. 

A  tenant  in  common  may  have  a  stranger  restrained 
from  trespass. 

Preston  v.  West's  Beach  Corp'n,  195  Mass. 
482  (house  built  on  beach). 

If  the  defendant  (by  demurrer)  admits  the  title  of 
the  plaintiff,  an  injunction  against  continuing  trespass 
may  issue,  especially  if  the  defendant  is  financially 
irresponsible. 

Hodgson  v.  Duce,  2  Jur.  (n.  s.)  1014;  Ames 
523. 

Slater  v.  Gunn,  170  Mass.  509  (where  defend- 
ant is  insolvent). 

Disturbance  of  a  private10  easement  by  the  erection  of 
structures  narrowing  or  impairing  it  may  be  enjoined, 
under  principles  similar  to  those  in  trespass. 

Crabtree  v.  Miller,  194  Mass.  123  (to  restrain 
locking  a  gate  on  a  way). 

Tucker  v.  Howard,  128  Mass.  361;  Ames  548 
(no  preliminary  injunction,  but  on  final 
decree,  after  completion,  defendant  com- 
pelled to  remove  wall). 

O'Brien  v.  Goodrich,  177  Mass.  32. 

Kendall  v.  Hardy,  208  Mass.  20. 

Frost  v.  Jacobs,  204  Mass.  1  (building  pro- 
jected eight  feet  above  surface). 

The  defendant  will  not  be  allowed  to  escape  with 
damages  by  offering  to  built  a  better  way. 
Downey  v.  Hood,  203  Mass.  4. 


10  In  case  the  easement  disturbed  is  public,  the  attorney  general 
may  be  the  proper  person  to  bring  the  bill. 


REPARATION  AND  PREVENTION  OF  TORTS     173 

If  the  damages  are  nominal  and  the  hardship11  to 
the  defendant  so  great  as  to  be  inequitable  or  oppres- 
sive, or  if  the  injury  is  slight  while  to  restore  things 
would  entail  a  great  loss  on  the  defendant,  or  if  there 
is  laches  in  enforcing  the  remedy,  a  mandatory  injunc- 
tion may  be  refused. 

Starkie  v.  Richmond,  155  Mass.  188  (injunc- 
tion refused  after  nine  years,  the  damage 
being  waived). 
Levi  v.  Worcester  Consol.  Ry.,  193  Mass.  116 
(court  ordered  substitute  way  offered  by 
defendant,  or,  if  rejected,  damages  for 
permanent  loss  of  the  way). 

Where  enjoyment  of  light  and  air  is  an  easement, 
its  disturbance  may  be  enjoined.  There  is  no  such 
easement  in  Massachusetts,  except  by  grant  or 
reservation. 

Lipsky  v.   Heller,    199   Mass.   310   (bill  to 
restrain  violation  of  rights  in  an  "open 
court"). 
Ames,  pp.  534-543  (for  English  cases  on  such 

easements). 
Mass.  Rev.  Laws.  ch.   130,  sec.   1  (no  such 

easement  by  prescriptive  use). 
Duncan  v.  Goldthwaite,  216  Mass.  402  (de- 
fendant owning  both  sides  of  way,  bridged 
across). 
Raynes  v.  Stevens,  219  Mass.  556  (no  implied 
casement  of  light  and  air  in  rear  of  store 
hired). 

Equity  may  in  an  appropriate  case  enjoin  trespass 
to  personalty. 

Watson  v.  Sutherland,  5  Wallace  74;  Ames 
531  (threatened  levy  against  chattels 
claimed  by  one  not  the  defendant). 


11  But  see  Koehl  v.  Burrell,  11  Ch.  Div.  140  (expensive  building 
ordered  removed;  no  laches). 


174  EQUITY  AND   ITS   REMEDIES 

C.  Nuisance.11 
Nuisance  results  from  the  conduct  of  one's  property 
or  of  one's  self  in  such  a  manner  as  to  injure  another 
to  an  extent  contrary  to  public  policy.  Relief  from 
nuisance  is  commonly  sought  in  equity  when  the 
nuisance  is  of  a  continuing  kind. 

Some  examples13  of  nuisances  are: 

Pollution  of  air  by  smoke  or   smell,    except   in 
territory  commonly  given  over  to  such  use 
(and  it  is  no  defense  that  others  caused  part 
of  the  pollution). 
Thorpe  v.  Brumfitt,  L.  R.  8.  Ch.  App.  650; 

Ames  547. 
Cf.  Downing  v.  Elliot,  182  Mass.  28. 
Georgia  v.  Tennessee  Copper  Co.,  237  U.  S. 
474  (gases  injuring  vegetation  in  adjoining 
state.) 
Escape  of  sand  and  acids  on  tenant  below. 

Boston  Ferrule  Co.  v.  Hills,  159  Mass.  147. 
Noise14  of  machinery. 

Stevens  v.  Rockport  Granite  Co.,  216  Mass. 
486. 
Odors  from  restaurant. 

Campbell  v.  Seaman,  63  N.  Y.  568. 
Vaughan  v.  Bridgham,  193  Mass.  392. 
Escaping  water. 

Drake  v.  Taylor,  203  Mass.  528. 


n  It  is  difficult  to  make  an  exact  definition  of  nuisance  or  classi- 
fication of  nuisance  cases.  Cases  of  the  kind  now  classed  as  Inter- 
ference with  Business  were  formerly  called  Nuisance  (see  Sherry  v. 
Perkins,  147  Mass.  212),  and  the  Massachusetts  court  calls  encroach- 
ment by  abutments  both  trespass  and  nuisance  (see  Curtis  Mfg.  Co. 
v.  Spencer  Wire  Co.,  203  Mass.  448). 

18  See  other  examples  collected  in  Ames  611,  note. 

M  For  noise  to  amount  to  a  nuisance,  it  must  be  harmful  to  the 
health  or  comfort  of  ordinary  people  and  an  "invasion  of  the  right 
to  comfortable  living."  Whether  a  certain  amount  of  noise  is,  under 
the  circumstances,  a  nuisance  is  usually  a  question  of  fact.  Stevens 
v.  Rockport  Granite  Co.,  216  Mass.  486. 


REPARATION  AND  PREVENTION  OF  TORTS     175 

Stoppage  of  brook. 

Melrose  v.  Cutter,  159  Mass.  461. 
Hittinger  Fruit  Co.  v.  Cambridge,  218  Mass. 
220. 
Pollution  of  waters. 

McNamara  v.  Taft,  196  Mass.  597. 
Merrifield  v.  Lombard,  13  Allen  16. 
Parker  v.  American  Woolen  Co.,  195  Mass. 
591. 
But  some  pollution  may  be  reasonable. 

Middlesex  Co.  v.   McCue,    149  Mass.   103 

(fertilizer). 
Downing  v.  Elliot,  182  Mass.  28  (soft  coal  in 
greenhouse  injuring  ice). 

The  use  of  property  so  that  its  appearance  is  offens- 
ive to  the  eye  is  conmonly  not  held  to  be  nuisance. 
Lane  v.  Concord,  70  N.  H.  485. 

Formerly,  in  England,  to  obtain  a  permanent  in- 
junction in  equity  for  nuisance  one  must  first  succeed 
at  law.15 

Weller  v.  Smeaton,  1  Brown's  Chanc.  572; 
Ames  554. 

If  the  plaintiff's  right  and  the  defendant's  wrong 
are  clear,  equity  will  now  grant  a  permanent  injunc- 
tion against  nuisance  without  a  prior  action  at  law. 
Otherwise,  it  may  temporarily  enjoin  until  legal  pro- 
ceedings are  had. 

Merrifield  v.  Lombard,  13  Allen  16  (polluting 
a  stream). 


15  Since  upon  the  plaintiff's  success  at  law  he  was  entitled  as  of 
course  to  an  injunction  in  equity  restraining  the  nuisance  (Bemis  v. 
Upham,  13  Pick.  169;  Hill  v.  Sayles,  12  Cush.  454)  the  Massachusetts 
statutes  now  allow  the  Superior  Court,  at  law,  to  issue  (in  addition 
to  an  execution)  a  warrant  to  an  officer  to  abate  the  nuisance  at  the 
expense  of  defendant,  or  the  court  of  law  may  even  enjoin.  Mass. 
Rev.  Laws,  ch.  186,  sees.  1-5. 


176  EQUITY   AND   ITS   REMEDIES 

Woodward    v.    Worcester,    121    Mass.    245 
(diversion  of  stream). 

The  equitable  jurisdiction  is  sometimes  said  to  be 
for  the  purpose  of  avoiding  a  multiplicity  of  suits. 

Stevens  v.  Rockport  Granite  Co.,  216  Mass. 
486. 

A  public  nuisance  is  an  injury  to  the  property  or 
rights  of  that  part  of  the  public  that  comes  within 
its  sphere  of  operation.  The  attorney  general  should 
bring  the  bill  in  this  case.    An  individual  may  not. 

Brainard  v.  Conn.  River  Ry.  Co.,  7  Cush,  506" 
Attorney  General  v.  Fitzsimmons,  35  Ameri- 
can Law  Register,  100;  Ames  622.  (fight) 
Dwyer,  v.  N.  Y.,  N.  H.  &  H.  R.R.,  209  Mass. 
419  (flow  of  creek  diminished  by  grade 
crossing  changes). 
Eaton  v.  Locke,  202  Mass.  324. 

Examples : 

1.  Obstruction  of  highways  and.  waterways. 

Dwyer  v.  N.  Y.,  N.  H.  H,&  R.R.  209  Mass. 
419. 

2.  Affecting  the  public  health. 

Attorney  General  v.  Hunter  1  Devereux  Eq« 

12;  Ames  621. 
Attorney  General  v.  Jamaica  Pond  Aqueduct 

133  Mass.  361. 

3.  Affecting  the  public  morals. 

Attorney  General  v.  Fitzsimmons,   35  Am. 

Law  Reg.  100;  Ames  622. 
Carleton  v.  Rugg,  149  Mass.  550. 

4.  Statutory. 

Attorney  General  v.  Williams,  174  Mass.  476. 

But  an  individual  may  have  restraint  of  a  public 
nuisance  if  it  is  also  a  private  nuisance  as  to  him  in 


REPARATION  AND  PREVENTION  OF  TORTS     177 

that  his  injury  is  different  in  kind,  not  merely  in  de- 
gree, from  that  of  the  rest  of  the  public. 

Robinson  v.  Brown,  182  Mass.  266  (public 
nuisance  not  private,  altho  obstruction  to 
highway  in  front  of  plaintiff's  premises). 

French  v.  Conn.  River  Lumber  Co.,  145 
Mass.  261.  (Public  nuisance,  also  private; 
a  boom  of  logs  in  river  near  plaintiff's 
wharf). 

Eaton  v.  Locke,  202  Mass.  324. 

In  some  cases  a  nuisance  may  be  enjoined  on  the 
suit  of  a  city  or  town  or  even  of  a  state. 

Taunton  v.  Taylor,  116  Mass.  254. 

Melrose  v.  Cutter,    159  Mass.  461   (where 

town  was  responsible  for  care  of  drain). 
Springfield  v.  Conn.  River  R.R.,  4  Cush.  63 

(railroad  in  highway). 
Rockport  v.  Elwell,  219  Mass.  287  (to  enjoin 

pollution   of    city   water    supply,    under 

statute). 
Georgia  v.  Tennessee  Copper  Co.,  237  U.  S. 

474  (to  enjoin  noxious  gases  from  adjoining 

state). 

The  lessor  of  property  or  any  owner  of  a  reversion- 
ary interest  may  have  an  injunction  only  upon  proof 
that  there  will  otherwise  be  an  irreparable  damage  to 
the  reversion. 

Atkins  v.  Chilson,  7  Met.  398. 
Parker  v.  American  Woolen  Co.,  195  Mass. 
591. 

Because  the  enjoining  of  a  nuisance  is  a  matter  of 
right,  no  amount  of  delay,  short  of  the  time  necessary 
for  the  acquirement  of  a  prescriptive  right,  will,  in 
the  absence  of  estoppel,  prevent  one  from  maintaining 
his  action  in  equity  to  restrain  the  commission  of  a 
nuisance  or  a  trespass. 


178  EQUITY  AND  ITS  REMEDIES 

Gal  way  v.  Metropolitan  Elevated  Ry.  Co., 

128  N.  Y.  132;  Ames  600. 
Pomeroy,  sec.  817. 

An  injunction  may  be  refused  where  the  nuisance  is 
occasional  or  temporary,  or  the  injury  is  past. 

Swaine  v.  Great  Northern  Ry.  Co.,  4  De  Gex 
Jones  &  Smith  211;  Ames  569  (occasional 
dead  cat  in  refuse  pile). 
Kenney  v.  Consumers'  Gas  Co.,  142  Mass. 
417. 

In  granting  temporary  injunctions  the  court  will 
consider  the  relative  hardship  to  the  parties.     Upon 
a  final  decree,  if  the  plaintiff  has  established  a  case  of 
permanent   nuisance,   the   court   cannot   weigh   the 
advantages,  since  the  injunction  is  a  matter  of  right 
and  is  granted  even  though  the  damages  are  nominal.16 
McNamara  v.  Taft,  196  Mass.  597  (plaintiff's 
farm  of  small  value  compared  with  defend- 
ant's mill). 

Mann  v.  Willey,  51  N.  Y.  App.  Div.  169; 
Ames  572  (pollution  by  sewage,  not 
noticeable  to  smell  or  sight,  in  water  not 
yet  used  for  drinking  purposes;  decree  for 
plaintiff). 

Brookline  v.  Mackintosh,  133  Mass.  215. 

Melrose  v.  Cutter,  159  Mass.  461  (no  actual 
damages  proven). 

Hennessy  v.  Carmony,  50  N.  J.  Eq.  616; 
Ames  578. 


16  In  the  matter  of  injunctions  commonly  granted  as  of  right, 
there  are  cases  where  on  the  question  of  permanently  enjoining,  the 
relative  hardships  were  considered  by  the  court  and  the  decr«»e  re- 
fused. Daniels  v.  Keokuk  Water  Co.,  61  Iowa  549;  Ames  585 
(soft  coal  nuisance);  Richards  Appeals,  57  Penn.  105;  Ames  574 
(soft  coal  nuisance).  That  plaintiff's  bill  was  in  the  nature  of  a 
holdup  prevented  a  decree  in  Edwards  v.  Allouez  Mining  Co.,  38 
Mich.  46;  Ames  608. 


REPARATION  AND  PREVENTION  OF  TORTS     179 

If  the  plaintiff  sustains  in  equity  his  right  to  a 
permanent  injunction  for  a  nuisance,  he  may  be 
entitled  to  damages  to  date;  and  if  there  has  been 
some  change  since  the  filing  of  the  bill  that  would  make 
an  injunction  ineffective,  he  may  have  damages. 

Potter  v.  Howe,  141  Mass.  357. 

Lexington  Print  Works  v.  Canton,  171  Mass. 

414. 
Case  v.  Minot,  158  Mass.  577. 

As  there  is  no  such  thing  as  an  equitable  nuisance, 
laches  not  amounting  to  a  prescriptive  right  is  no 
defense,  but  may  be  considered  in  granting  prelimin- 
ary injunctions,  or  in  granting  permanent  injunctions 
until  after  a  suit  at  law. 

Galway  v.  Metropolitan  Elevated  Ry.  Co., 

128  N.  Y.  132;  Ames  600. 
Dana  v.  Valentine,  5  Met.  8. 

But  a  prescriptive  right  to  maintain  a  private 
nuisance  may  be  gained  by  the  statutory  period. 

Dana  v.  Valentine,  5  Met.  8. 

New  Salem  v.  Eagle  Mill  Co.,  138  Mass.  8. 

In  the  case  of  a  public  nuisance  no  prescriptive  right 
can  be  gained. 

Attorney  General   v.    Revere    Rubber    Co., 
152  Mass.  444. 

In  the  case  of  pollution  amounting  to  a  nuisance,  it 
is  sometimes  immaterial  that  the  pollution  does  not 
interfere  with  the  present  use  of  plaintiff's  property.17 

Parker  v.  American  Woolen  Co.,  195  Mass. 

591. 
But  see  Dana  v.  Valentine,  5  Met.  8  (where 


17  Actual  damages  need  not  be  shown  in  a  suit  at  law,  where  a 
party's  right  of  property  is  invaded.  Bolivar  Mfg.  Co.  v.  Neponset 
Mfg.  Co.  16  Pick.  247. 


180  EQUITY  AND   ITS   REMEDIES 

i 

relief  was  not  afforded  owners  of  vacant 
lots,  from  smells). 

It  is  immaterial  to  the  plaintiff's  right  to  relief  that 
he  acquired  his  property  knowing  that  the  defendant 
was  maintaining  a  nuisance. 

Boston  Ferrule  Co.  v.  Hills,  159  Mass.  147. 

It  is  no  defense  that  third  persons  are  in  part 
responsible  for  the  results  complained  of. 

Parker  v.  American  Woolen  Co.,  215  Mass. 
176. 

But  if  one  has  let  a  building  with  full  knowledge  of 
the  lessee's  business,  he  is  not  entitled  to  have  him 
enjoined  from  doing  what  is  necessarily  incident  to 
the  conduct  of  that  business.  He  will  be  left  to  his 
legal  remedy,  if  any. 

Browne  v.  Niles,  165  Mass.  276. 

The  legislature  may  change  the  common  law  of 
nuisances  by  adding  to  or  taking  from  its  operation 
certain  acts.18 

Rideout  v.  Knox,  148  Mass.  368  (spite  fence; 
under  Rev.  Laws,  ch.  33,  sec.  19). 

Sawyer  v.  Davis,  136  Mass.  239  (ringing 
factory  bell.  See  Rev.  Laws,  ch.  106,  sec. 
9). 

If  a  license  to  conduct  a  business  complained  of  has 
been  granted  by  a  competent  public  body,  duly 
authorized  by  the  legislature,  the  business  will  not  be 
enjoined  as  a  nuisance.  Injury  in  such  case  is 
"damnum  absque  injuria." 

White  v.  Kenney,  157  Mass.  12  (stable). 


18  No  attempt  is  made  here  to  collect  the  large  number  of  acts 
that  under  statutes  are  made  nuisances.  They  include  such  diverse 
acts  as  advertisements  on  natural  scenery,  erections  in  tide  waters, 
use  of  buildings  for  illegal  sale  of  liquor  or  for  gaming,  etc. 


REPARATION  AND  PREVENTION  OF  TORTS     181 

Levin  v.  Goodwin,  191  Mass.  341  (bowling 
alley,  altho  pecuniary  damage  shown). 

The  decree  in  a  nuisance  case  may  direct  the  ces- 
sation of  the  result,  though  not  necessarily  of  the 
thing  causing  it  (e.  g.  the  jarring  of  a  machine,  but  not 
the  use  of  the  machine  itself). 

Hennessy  v.  Carmony,  50  N.  J.  Eq.  616. 

Stevens  v.  Rockport  Granite  Co.,19  216  Mass. 
486. 

Cronin  v.  Bloemecke,  58  N.  J.  Eq.  313; 
Ames  560  (games  of  baseball  not  enjoined, 
but  the  playing  if  it  so  as  to  be  a  nuisance 
to  plaintiff,  pendente  lite). 

The  decree  may  include  damages. 

Parker  v.  American  Woolen  Co.,  215  Mass. 
176  (pollution  of  stream.  Damages  in- 
cluded diminution  of  rent  and  value  and 
cost  of  cleaning  out). 

D.   Infringement   of   Patents,    Copyrights   and 

Trademarks.     Unfair  Competition. 
Patents. 

Suits  involving  the  infringement  of  patents  must  be 
brought  in  the  federal  courts.  But  suits  involving 
assignments  of  patents  and  other  agreements  about 
them  may  be  brought  in  the  state  courts.20 

Potterton  v.  Condit,  218  Mass.  216  (suit  for 

royalty). 
Marshall  Engine  Co.  v.  New  Marshall  Engine 


19  In  this  case  the  decree  enjoined  the  operating  of  machines  in 
such  a  manner  as  to  interfere  with  the  reasonable  comfort  and 
enjoyment  of  life  by  the  plaintiffs. 

20  Nor  is  the  state  court  ousted  of  its  jurisdiction  because  a  question 
of  invalidity  is  incidentally  presented.  Marshall  Engine  Co.  v. 
New  Marshall  Engine  Co.,  199  Mass.  546. 


182  EQUITY  AND   ITS   REMEDIES 

Co.,  199  Mass.  54621  (suit  for  specific  per- 
formance of  an  agreement  to  assign  a 
patent). 

A  preliminary  injunction  will  usually  be  granted 
against  a  defendant  if  the  plaintiff's  right  and  the 
defendant's  infringement  are  clear. 

Standard  Elevator  Co.  v.  Crane  Elevator  Co., 
56  Fed.  Rep.  718. 

Public  acquiescence  in  the  plaintiff's  claim,  a  prior 
adjudication  of  a  federal  court  in  an  infringement 
suit,  or  by  the  Patent  Office  in  an  interference  pro- 
ceeding, are  strong  factors  in  determining  the  course 
of  the  court  as  to  a  temporary  injunction. 

Blount  v.  Soci6te  Anonyme,  53  Fed.  Rep.  98. 

Dickerson  v.  De  la  Vergne,  etc.,  Co.,  35  Fed. 

Rep.  143. 
Leeds  C.  Co.  v.  Victor  Talking  Mach.  Co., 

213  U.  S.  301. 

The  giving  of  a  bond  by  the  plaintiff  to  indemnify 
the  defendant  if  the  bill  is  subsequently  dismissed, 
may  be  made  a  pre-requisite  to  granting  a  temporary 
injunction;  or  a  bond  by  the  defendant  to  cover 
damages  that  may  be  ultimately  recovered  may  be 
the  condition  on  which  a  temporary  injunction  is 
refused. 

Consolidated  Electric  Storage  Co.  v.  Ac- 
cumulator Co.,  55  Fed.  Rep.  485  (bond 
by  plaintiff). 
Nat.  Cash  Register  Co.  v.  Navy  Cash  Regis- 
ter Co.,  99  Fed.  Rep.  565  (bond  by 
defendant). 

If  the  litigation  results  in  the  plaintiff's  prevailing, 
a  permanent  decree  against  infringement  is  entered, 
lasting  for  the  life  of  the  patent. 


a  Affirmed  in  223  U.  S.  473. 


REPARATION  AND  PREVENTION  OF  TORTS     183 

Copyrights. 

Copyrights22  like  patents  are,  under  the  constitution, 
within  the  exclusive  jurisdiction  of  the  federal  govern- 
ment. 

Constitution  of  the  United  States,  Article  1, 

Section  8. 
U.  S.  Comp.  Stat.  1901,  p.  3406. 

In  cases  involving  an  alleged  infringement,  it  must 
first  appear  that  the  plaintiff  is  an  "author  or  pro- 
prietor" under  the  statute. 

Callaghan  v.  Myers,  128  U.  S.  617  (a  reporter 

of  decisions  may  be,  as  to  head  notes). 
Burrow-Giles   Lithographic    Co.    v.   Sarony 
111  U.  S.  53  (photograph  as  a  work  of 
art). 

One  may  make  bona  fide  quotations  from  a  book 

without  necessarily  being  an  infringer.     The  value 

of  the  material  taken  and  the  importance  of  it  to  the 

sale  of  the  original  work  are  considered. 

Baker  v.  Selden,  101  U.  S.  99. 

Edward  Thompson  Co.  v.  American  Law 

Book  Co.,  122  Fed.  Rep.  922. 
Dun  v.  Lumbermen's  Credit  Ass'n,  209  U.  S. 
20. 

The  granting  of  temporary  injunctions  is  governed 
by  considerations  similar  to  those  affecting  their 
granting  in  patent  cases. 

West  Publishing  Co.  v.  Lawyers'  Co-op.  Pub. 
Co.,  53  Fed.  Rep.,  265  (refused  here). 

The  final  decree,  if  in  favor  of  the  plaintiff,  includes 
an  accounting  of  the  defendant's  profits. 


22  The  issuance  of  a  copyright  (from  the  Office  of  the  Librarian 
of  Congress)  differs  from  the  granting  of  a  patent  in  that  it  is  made 
practically  as  a  matter  of  course.  Copyrights  are  issued  covering 
books,  maps,  charts,  paintings,  drawings,  music,  photographs,  statues, 
plays,  etc. 


184  EQUITY  AND  ITS  REMEDIES 

Globe  Newspaper  Co.  v.  Walker,  210  U.  S. 
356  (discussion  of  remedies) . 

Unpublished  Manuscripts,  Photographs,  Letters, 
etc. 
The  state  courts  have  jurisdiction  to  restrain  the 
unauthorized  publication  of  unpublished  manuscripts, 
business  data,  photographs,  plays  or  works  of  art. 
Such  publication  is  an  invasion  of  the  author's  literary 
property  at  common  law. 

Tompkins  v.  Halleck,  133  Mass.  32  (play). 
Pollard  v.  Photographic  Co.,  L.  R.  40  Ch.  D. 

345  (photograph). 
F.  W.  Dodge  Co.  v.  Construction  Information 
Co.,  183  Mass.  62  (commercial  informa- 
tion). 
Ferris  v.  Frohman,  223  U.  S.  424  (play). 

In  some  jurisdictions  a  right  of  privacy23  is  recog- 
nized, in  accordance  with  which  one  has  a  right  not 
to  have  his  portrait  published  in  any  form  without 
his  consent,  although  no  property  right  is  involved. 

Corliss   v.  E.  W.  Walker  Co.,  64  Fed.  Rep. 

280. 
Pavesich  v.  N.  E.  Life  Ins.  Co.,  122  Ga.  190. 

The  writer  of  the  ordinary  letter,  or  after  his  death 
his  personal  representative,  has  such  a  proprietary 
right  in  the  publication  or  non-publication  of  it  as  to 
be  able  to  enjoin  its  publication  by  the  recipient. 
The  latter  has  title  to  the  letter  itself,  however,  and 
will  not  be  enjoined  from  selling  it. 

Baker  v.  Libbie,  210  Mass.  599  (letters  of 
Mrs.  Eddy). 

Trade  marks. 
A  trademark  is  a  peculiar  name  or  device  by  which 


28  For  an  interesting  discussion  of  this  right  of  privacy,  see  an 
article  by  Messrs.  Warren  and  Brandeis  in  Harvard  Law  Review  for 
Sec.  1890. 


REPARATION  AND  PREVENTION  OF  TORTS     185 

a  person  dealing  in  an  article  designates  it  and  of 
which  he  has  exclusive  use.  An  infringement  of  it 
is  a  wrongful  invasion  of  a  right  at  common  law.  The 
continued  violation  of  it  will  be  enjoined  in  equity. 

Weener  v.  Brayton,  152  Mass.  101. 

,      Frank  v.  Sleeper,  150  Mass.  583  ("NS"  as 
a  cigar  trademark). 

The  wrong  which  equity  redresses  is24  the  palming 
off  of  one's  goods  as  and  for  another's,  the  getting 
of  another's  business  or  the  injuring  of  his  business 
reputation  by  unfair  means  and  perhaps  the  defraud- 
ing of  the  public. 

Chadwick  v.  Covell,  151  Mass.  190. 

Weener  v.  Brayton,  152  Mass.  101. 

To  be  entitled  to  the  protection  of  the  court  for  a 
trademark  one  must  show  that  he  has  adopted  the 
mark  for  some  article  of  traffic  and  that  such  article 
has  been  placed  on  the  market.26 

Weener  v.  Brayton,  152  Mass.  101. 

The  adoption  and  use  of  a  trademark  creates  a 
right  under  the  common  law.  Registration  affords 
prima  facie  evidence  of  its  adoption  and  use.  The 
owner's  right  may  be  protected  in  the  state  courts26 
whether  the  mark  is  registered  in  the  United  States 


24  This  statement  of  the  law  is  based  on  the  opinion  of  Holmes,  J. 
in  Chadwick  v.  Covell,  151  Mass.  190.  He  says  further,  "Some 
judges,  noticeably  Lord  Westbury,  have  preferred  to  rest  the  pro- 
tection to  trade  marks  on  the  notion  of  property  rather  than  fraud, 
but  he  means  no  more  than  that  the  deception  which  equity  will 
prevent  need  not  have  been  intended."  The  Massachusetts  cases 
have,  however,  for  the  most  part  proceeded  on  the  theory  that  trade- 
marks were  property.  See  Warren  v.  Warren  Thread  Co.,  134  Mass. 
247. 

25  The  temporary  disuse  of  a  mark  does  not  lose  its  owner  his 
rights.    Burt  v.  Tucker,  178  Mass.  493. 

26  The  federal  courts  do  not  have  sole  jurisdiction  as  in  patents. 
The  right  of  Congress  to  legislate  in  the  matter  of  trademarks  falls 
under  its  power  to  "regulate  commerce." 


186  EQUITY  AND   ITS   REMEDIES 

Patent  Office"  (or,  in  Massachusetts,  with  the  Secre- 
tary of  the  Commonwealth28)  or  is  unregistered. 

Traiser  v.  Doty  Cigar  Co.,  198  Mass.  327 
("Peep  In"  cigars  held  to  infringe  "Pip- 
pin."    Both  registered  with  U.  S.) 

Apart  from  statute,29  only  one  who  in  some  form 
carries  on  business,  may  have  a  trademark  that  will  be 
protected. 

Frank  v.  Sleeper,  150  Mass.  583  (cigar 
jobber). 

Nelson  v.  Winchell  &  Co.,  203  Mass.  75. 
Weener  v.  Brayton,  152  Mass.  101  (a  labor 
union  does  not  carry  on  business). 

A  word  of  territorial  description  or  a  common  noun 
descriptive  of  the  product  is  not  a  good  trademark. 

Standard  Paint  Co.  v.  Trinidad  Asphalt  Mfg. 
Co.,  220  U.  S.  446  ("Ruberoid"  and 
"Rubbero"  roofing). 

American  Waltham  Watch  Co.  v.  U.  S. 
Watch  Co.,  173  Mass.  85  ("Waltham 
Watch"). 

Gilman  v.  Hunnewell,  122  Mass.  139. 

A  word  which  might  become  a  valid  trademark 
when  applied  to  an  unpatented  article  may  not  be  so 
when  applied  to  a  patented  article.  The  right  to  the 
exclusive  use  of  such  a  word  expires  with  the  patent, 
even  though  the  word  be  registered  as  a  trademark. 

Dover  Stamping  Co.  v.  Fellows,  163  Mass. 
191  ("Dover"  egg-beaters). 

Marshall  Engine  Co.  v.  New  Marshall  Engine 
Co.,  203  Mass.  410. 


27  See  U.  S.  Stats.  1905,  ch.  592. 

28  See  Mass.  Rev.  Laws,  ch.  72,  sec.  7. 

29  See  for  example  Mass.  Rev.  Laws,  ch.  72;  also  Mass.  St.  1904, 
ch.  235;  St.  1907,  ch.  232;  St.  1909,  ch.  514,  sees.  31,  32. 


REPARATION  AND  PREVENTION  OF  TORTS  187 

The  owner  of  a  trademark  not  purely  personal30 
may  assign  it,  in  connection  with  the  sale  of  good  will, 
or  may  grant  a  limited  interest  therein  by  way  of 
license.  Courts  of  equity  will  recognize  such  interests, 
even  though  the  effect  may  be  to  deprive  the  assignor 
of  the  right  thereafter  to  use  his  name  in  a  business 
way. 

Frank  v.  Sleeper,  150  Mass.  583  (NS  Cigars). 
Herring-Hall-Marvin  Safe  Co.  v.  Hall's  Safe 

Co.,  208  U.  S.  554. 
Warren  v.  Warren  Thread  Co.,  134  Mass.  247 
(passed  to  insolvency  assignee). 

Burt  v.  Tucker,  178  Mass.  493. 
Hoxie  v.  Chaney,  143  Mass.  592. 

But  trademarks  which  may  be  transferred  with  the 
sale  of  a  going  business  are  not  capable  of  being 
assigned,  apart  from  the  business,  so  as  to  give  the 
assignee  an  exclusive  right  to  the  use  of  them. 

Chadwick  v.  Covell,  151  Mass.  190  ("Dr. 
Spencer's  Queen  of  Pain,"  etc.) 

Covell  v.  Chadwick,  153  Mass.  263  ("Dr. 
Spencer's  Queen  of  Pain,"  etc.) 

A  plaintiff  will  not  be  afforded  a  remedy  in  equity 
if  his  trademark  contains  misrepresentations  calcu- 
lated to  deceive  purchasers;  but  merely  collateral 
misrepresentations  will  not  be  a  bar  to  relief. 

C.  E.  Worden  &  Co.  v.  California  Fig  Syrup 
Co.,  187  U.  S.  516  ("Syrup  of  Figs"). 

Nelson  v.  Winchell  &  Co.,  203  Mass.  75. 

Jacobs  v.  Beecham,  221  U.  S.  263  (use  of  the 
word  "patent"  medicine  when  it  is  not 
patented  is  not  such  a  fraud  as  to  bar 
relief. 


80  But  a  trade  name  representing  the  skill  of  the  individual  using 
it  is  not  assignable.    Messer  v .  The  Fadettes,  168  Mass.  140. 


188  EQUITY  AND  ITS   REMEDIES 

Trade  Names.    Unfair  Competition. 

The  protection  of  equity  is  not  confined  to  technical 
trademarks.  Words  incapable  of  becoming  trade- 
marks may  become  so  associated  with  a  particular 
kind  of  goods  or  with  the  specific  product  of  a  certain 
manufacturer  that  they  acquire  a  secondary  meaning. 
Under  such  circumstances,  the  use  of  them  by  another 
may  be  restrained  as  unfair  competition  (except  in 
certain  cases  where  such  use  is  permitted  when  accom- 
panied by  a  statement  showing  that  the  article  is  not 
of  the  plaintiff's  manufacture).  The  gist  of  such  an 
action  is  not  the  use  of  particular  words,  but  the 
appropriation  of  the  plaintiff's  business. 

Jacobs  v.  Beecham,  221 U.  S.  263  ("Beecham's 
Pills"). 

C.  A.  Briggs  Co.  v.  National  Wafer  Co.,  215 
Mass.  100  ("Boston  wafers"). 

American  Waltham  Watch  Co.  v.  U.  S. 
Watch  Co.,  173  Mass.  85  ("Waltham 
Watch"). 

Grocers'  Supply  Co.  v.  Dupuis,  219  Mass. 
576  ("Kormon31  water,"  etc.) 

To  obtain  equitable  relief  because  of  unfair  com- 
petition the  plaintiff  is  not  required  to  prove  that 
customers  have  actually  been  deceived,  but  simply 
that  they  are  likely  to  be  deceived.  And  it  is  im- 
material that  customers  are  indifferent  whether  they 
get  the  plaintiff's  or  the  defendant's  product. 

Reading  Stove  Works  v.  S.  M.  Howes  Co., 
201  Mass.  437. 

In  the  absence  of  a  patent,  or  after  the  expiration  of 
one,  the  freedom  to  manufacture  an  article  similar 
to  another's  will  not  ordinarily  be  cut  down  under 
the  guise  of  preventing  unfair  competition. 


81  Quaere,  as  to  the  advantage,  if  any,  derived  from  registering  a 
trade  name. 


REPARATION  AND  PREVENTION  OF  TORTS     189 


Flagg  Manufacturing  Co.  v.  Holway,   178 

Mass.  83  (zithers).' 
Dover  Stamping  Co.  v.  Fellows,  163  Mass. 

191. 

But  if  the  plaintiff  has  acquired  a  valuable  reputa- 
tion in  connection  with  the  size,  shape  and  condition 
of  a  certain  article  manufactured  by  him,  or  the 
package  in  which  it  is  contained,  the  defendant  may 
not,  by  adopting  this  combination,  mislead  the  public 
to  the  plaintiff's  detriment  and  his  own  advantage. 
If  necessary  for  him  to  adopt  the  combination,  it 
should  be  accompanied  by  a  designation  or  statement 
plainly  showing  that  his  article  is  not  of  the  plain- 
tiff's manufacture. 

N.  E.  Awl  and  Needle  Co.  v.  Marlborough 
Awl  &  Needle  Co.,  168  Mass.  154  (pack- 
ages of  awls). 
Geo.  G.  Fox  Co.  v.  Glynn,  191  Mass.  344 

(loaves  of  bread). 
Geo.  G.  Fox  Co.  v.  Hathaway,  199  Mass.  99 

(loaves  of  bread). 
Geo.  G.  Fox  Co.  v.  Best  Baking  Co.,  209 

Mass.  251  (loaves  of  bread). 
Coats  v.  Merrick  Thread  Co.,  149  U.  S.  562 
(thread). 

Trade  Secrets. 

Although  one  who  is  the  discoverer  or  inventor  of 
formulae  or  secret  processes  of  manufacture  has  no 
exclusive  right  as  against  the  public,  he  may  be  pro- 
tected by  injunction  from  the  disclosure  of  these  by 
one  wrongfully  obtaining  possession  of  them,  whether 
such  disclosure  is  in  violation  of  an  express  contract 
or  the  breach  of  confidence  reposed. 

Peabody  v.  Norfolk,  98  Mass.  452  (machinery 

secrets  intrusted  to  engineer). 
Noble   v.   J.    Burnett   Co.,    208   Mass.    75 
(formulae). 


190  EQUITY  AND  ITS   REMEDIES 

And  generally  an  employer  is  entitled  to  equitable 
relief  where  an  employee  has  made  use  of  information 
which  has  come  to  him  in  his  employment,  to  the 
detriment  of  the  employer. 

Essex  Trust  Co.  v.  Enwright,  214  Mass.  507. 
Am.  Circular  Loom  Co.  v.  Wilson,  198  Mass. 
182  (constructive  trust  in  patent  assign- 
ment taken  by  employee  in  breach  of 
duty). 

But  the  invention  of  a  machine  by  an  employee 
raises  no  implied  agreement  to  assign  the  patent 
thereon  to  his  employer;  although  under  some  con- 
ditions the  employer  may  have  a  "shop  right"  in 
machines  developed  in  his  shop. 

American  Circular  Loom  Co.  v.  Wilson,  198 
Mass.  182. 

American  Stay  Co.  v.  Delaney,32  211  Mass. 
229. 

Accounting  for  Infringement,  etc. 

The  relief  afforded  in  cases  of  trademark  and  p  tent 
infringement  and  of  unfair  competition,  usually  in- 
cludes the  right  to  an  accounting  for  profits. 

Nelson  v.  Winchell,  203  Mass.  75  (with  rules 

for  such  accounting). 
Forster  Mfg.  Co.  v.  Cutter-Tower  Co.,  215 
Mass.  136. 

But  where  the  wrongful  use  of  a  trademark  or  name 
has  been  accidental  or  without  intent  to  defraud  the 
plaintiff  or  to  deceive  the  public,  there  is  no  account- 
ing for  profits,  though  there  may  be  an  injunction. 
Regis  v.  Jaynes,  191  Mass.  245. 

In  cases  where  profits  are  allowed  the  plaintiff,  it 


82  In  this  case  the  bill  was  retained  to  assess  the  damages  which 
the  employer  had  sustained  from  the  breach  of  the  defendant's  con- 
tract to  give  all  his  time  to  the  plaintiff  (his  employer). 


REPARATION  AND  PREVENTION  OF  TORTS     191 

is  not  always  easy  to  determine  the  elements  entering 
into  such  profits.  Whether  or  not  there  should  be  a 
deduction  for  the  overhead  expenses  of  the  defendant 
depends  upon  whether  or  not  such  expenses  have  been 
increased  by  the  transactions  complained  of. 

C.  A.  Briggs  Co.  v.  National  Wafer  Co.,  215 
Mass.  100. 

Nelson  v.  Winchell  &  Co.  203  Mass.  75. 

Regis  v.  Jaynes,  191Mass.  245. 

In  addition  to  profits,  the  plaintiff  may  have  dam- 
ages in  appropriate  cases;  but  such  damages  must 
arise  from  elements  not  satisfied  by  an  accounting  for 
the  profits. 

Nelson  v.  Winchell  &  Co.  203  Mass.  75. 
Forster  Mfg.  Co.  v.  Cutter  Tower  Co.,  215 
Mass.  136. 

E.  Interference  with  Business  (or  Employment), 
Interference  with  Contract.33 

At  common  law  it  is  the  right  of  every  citizen  to 
pursue  his  calling,  whether  of  labor  or  business,  as 
he  in  his  judgment  sees  fit,  so  long  as  in  so  doing  he 
does  not  violate  his  duties  to  others  and  to  the  public. 
Interference  with  his  right  is  a  tort  and  in  proper 
cases,  apart  from  statute,  will  be  enjoined. 
Article  I,  Massachusetts  Declaration  of  Rights. 

Carew  v.  Rutherford,   106  Mass.   1,  at  14 
(tort   for   extortion  in  obtaining   money 
under  threat  of  interfering  with  business). 
Pickett  v.  Walsh,  192  Mass.  572,  at  581. 
Willcutt  &  Sons  Co.  v.  Driscoll,  200  Mass. 
110,  at  117  (calling  the  right  that  of  a 
"reasonably  free  labor  market"). 
Vegelahn  v.  Guntner,  167  Mass.  92. 
McGurk    v.    Cronenwett,    199    Mass.    457 


33  See  note  33  on  page  192. 


192  EQUITY  AND  ITS   REMEDIES 

(malicious  interference  with  known  con- 
tract; tort). 

But  see  Mass.  St.  1914,  ch.  778. 

See  Mass.  Rev.  Laws,  ch.  106,  sec.  12s4  (a 
crime  to  make  non-membership  in  union 
a  prerequisite  of  employment). 

Intentional  interference  with  the  right  of  an  in- 
dividual to  dispose  of  his  labor  at  his  will  or  to  have 


83  This  chapter  was  written  prior  to  the  passage  in  Massachusetts 
of  St.  1914,  ch.  778,  and  contains  a  summary  of  the  principles  care- 
fully worked  out  by  the  Massachusetts  court  through  a  series  of 
years.  The  statute  will  radically  change  the  application  of  some 
of  them  to  cases  arising  in  industrial  disputes.  But  as  it  will  require 
much  judicial  interpretation  before  its  application  is  fully  known, 
the  author  has  decided  to  allow  this  summary  of  the  law,  as  it  stood 
at  the  time  the  statute  was  passed,  to  remain  as  written.  The 
application  of  every  proposition  set  forth  in  this  section  should  be  meas- 
ured in  Massachusetts  by  the  limitation  prescribed  in  the  act  of  19 14, 
the  first  two  sections  of  which  are : 

"Section  1.  It  shall  not  be  unlawful  for  persons  employed  or  seek- 
ing employment  to  enter  into  any  arrangements,  agreements  or 
combinations  with  the  view  of  lessening  the  hours  of  labor  or  of 
increasing  their  wages  or  bettering  their  condition;  and  no  restrain- 
ing order  or  injunction  shall  be  granted  by  any  court  of  the  common- 
wealth or  by  any  judge  thereof  in  any  case  between  an  employer 
and  employees,  or  between  employers  and  employees,  or  between 
persons  employed  and  persons  seeking  employment,  or  involving 
or  growing  out  of  a  dispute  concerning  terms  or  conditions  of  employ- 
ment, or  any  act  or  acts  done  in  pursuance  thereof,  unless  such  order 
or  injunction  be  necessary  to  prevent  irreparable  injury  to  property 
or  to  a  property  right  of  the  party  making  the  application,  for  which 
there  is  no  adequate  remedy  at  law;  and  such  property  or  property 
right  shall  be  particularly  described  in  the  application,  which  shall 
be  sworn  to  by  the  applicant  or  by  his  agent  or  attorney. 

"Section  2.  In  construing  this  act,  the  right  to  enter  into  the  rela- 
tion of  employer  and  employee,  to  change  that  relation,  and  to  assume 
and  create  a  new  relation  for  employer  and  employee,  and  to  perform 
and  carry  on  business  in  such  relation  with  any  person  in  any  place, 
or  to  do  work  and  labor  as  an  employee,  shall  be  held  and  construed 
to  be  a  personal  and  not  a  property  right.  In  all  cases  involving 
the  violation  of  the  contract  of  employment  either  by  the  employee 
or  employer  where  no  irreparable  damage  is  about  to  be  committed 
upon  the  property  or  property  right  of  either,  no  injunction  shall 
be  granted  but  the  parties  shall  be  left  to  their  remedy  at  law." 

34  The  constitutionality  of  this  statute  may  be  questionable. 


REPARATION  AND  PREVENTION  OF  TORTS  193 

the  benefit  of  a  contract  is  malice  at  law  (even  if  from 
good  motives  and  without  express  malice),  unless  such 
interference  is  by  one  acting  in  the  exercise  of  an  equal 
or  superior  right  which  comes  in  contact  with  the 
other,  as  in  fair  competition. 

Berry   v.    Donovan,    188   Mass.   353    (tort, 
brought  by  an  operative  for  interference 
with  his  contract  for  employment). 
Hoban  v.  Dempsey,  217  Mass.  166  (fair  com- 
petition between  unions).35 
Burnham  v.  Dowd,  217  Mass.  351. 

Malicious  interference  with  a  contract  of  another36 
is  a  form  of  trespass  on  the  case  and  is,  apart  from 
statute,  ground  for  injunctive  relief  and  damages, 
whether  the  interference  is  by  an  individual  or  by  a 
combination  of  conspiring  persons. 

N.  E.  Cement  Gun  Co.,  v.  McGivern,  218 
Mass.  198  (injunctive  relief  and  damages 
to  business;  but  no  damages  in  this  case 
for  breach  of  contract  because  plaintiff 
assented  to  breach). 
Beekman  v.  Marsters,  195  Mass.  205,  at  212 
(a   single    defendant;  not   an    industrial 
case). 
Reynolds  v.  Davis,  198  Mass.  294,  at  298. 
Berry  v.  Donovan,  188  Mass.  353,  at  357 

(tort). 
Aberthaw  Construction  Co.  v.  Cameron,  194 
Mass.  208  (a  "conspiracy"  resulting  in  a 
breach  of  contract). 
Walker   v.    Cronin,    107   Mass.    555    (tort; 
single  defendant). 


85  In  this  case,  Rugg,  C.  J.,  speaks  of  a  boycott  as  having  for  an 
essential  element  intentional  injury  to  somebody. 

86  But  if  the  plaintiff  has  no  contract,  he  may  lack  the  "property 
interest"  upon  which  to  predicate  equitable  relief.  Worthington  v. 
Waring,  157  Mass.  421;  Hoban  v.  Dempsey,  217  Mass.  166.  And 
see  Mass.  St.  1914,  ch.  778. 


194  EQUITY  AND  ITS   REMEDIES 

Loughery  v.  Huxford,  206  Mass.  324  (tort 

case). 
But  see  Mass.  St.  1914,  ch.  778. 

The  fact  that  a  contract  is  terminable  at  will  does 
not  affect  the  right  to  recover  for  unlawful  inter- 
ference with  the  contract.  It  does,  however,  affect 
the  amount  of  damages. 

Berry  v.  Donovan,  188  Mass.  353. 

Irrespective  of  the  presence  of  a  contract,  inten- 
tional wilful  acts,37  calculated  to  cause  damage  to  the 
plaintiff's  lawful  business  or  calling,  done  with  unjust 
purpose  to  cause  damage,  with  actual  resulting 
damage,  may,  apart  from  statute,  be  enjoined. 

Davis  v.  N.  E.  Railway  Pub.  Co.,  203  Mass. 
470  (causing  competitors  to  be  omitted 
from  directory  of  expressmen). 

Walker  v.  Cronin,  107  Mass.  555  (malici- 
ously38 inducing  another's  workman  to 
leave). 

Plant  v.  Woods,  176  Mass.  492  (between  two 
unions;  interference  with  the  employment 
of  plaintiffs  by  intimidating  the  employer). 

Moran  v.  Dunphy,  177  Mass.  485  (tort). 

But  see  Holbrook  v.  Morrison,  214  Mass.  209 
(suit  by  real  estate  dealer  to  restrain 
neighbor  from  advertising  her  home  for 
sale  to  "colored  people."  No  relief  on 
facts). 

Competition  is  no  justification  for  interference  with 
contract;  it  may  justify  reasonable  interference  with 


87  Such  an  act  may  be  the  strike  itself  in  a  case  where  the  purpose 
of  the  strike  is  unlawful,  or  any  one  of  many  acts  done  in  pursuance 
of  a  strike,  whether  the  purpose  of  the  strike  is  lawful  or  unlawful. 
See  Martell  v .  White,  185  Mass.  255.     But  see  Mass.  St.  1914,  ch.  778. 

38  In  this  case  the  filing  of  a  demurrer  was  an  admission  of  the 
absence  of  "justifiable  cause." 


REPARATION  AND  PREVENTION  OF  TORTS     195 

the  business  of  another.89 

Beekman  v.  Marsters,  195  Mass.  205,  at  212 

(competition  between  tourist  agencies). 
Walker  v.  Cronin,  107  Mass.  555. 
Hoban  v.  Dempsey,  217  Mass.  166. 

A  combination  among  persons  (as  in  a  labor  union) 
merely  to  regulate  their  own  conduct,  is  within  allow- 
able competition40  and  is  lawful,  although  others  may 
be  materially  affected  thereby. 

Snow  v.  Wheeler,  113  Mass.  179  (Order  of 
Knights  of  St.  Crispin  not  a  trust  for  an 
illegal  purpose). 
Mass.  St.  1914,  ch.  778. 

So  the  combining  of  employed  persons  in  a  strike 
is  lawful  in  purpose  if  for  a  direct  trade  advantage  to 
the  strikers. 

Vegelahn  v.  Guntner,  167  Mass.  92. 
Willcut  &  Sons  Co.  v.  Driscoll,  200  Mass.  110, 
at  1 14  (higher  wages  and  a  shorter  day  are 
such  trade  advantages). 


39  "Everyone  has  a  right  to  enjoy  the  fruits  and  advantages  of 
his  own  enterprise,  industry,  skill  and  credit.  He  has  no  right  to 
be  protected  against  competition;  but  he  has  a  right  to  be  free  from 
malicious  and  wanton  interference,  disturbance  and  annoyance. 
If  disturbance  and  loss  come  as  a  result  of  competition  or  the  exer- 
cise of  the  rights  of  others,  it  is  damnum  absque  injuria,  unless  some 
superior  right  by  contract  or  otherwise  is  interfered  with;  but  if 
they  come  from  the  merely  wanton  or  malicious  acts  of  others  with- 
out the  justification  of  competition  or  the  service  of  any  interest  or 
lawful  purpose,  it  then  stands  upon  a  different  footing."  Walker 
».  Cronin,  107  Mass.  555. 

40  Although  the  struggle  between  employers  and  the  employed 
in  the  attempt  of  each  class  to  obtain  as  large  a  share  as  possible 
of  the  income  from  their  combined  efforts  in  the  industrial  field  is 
in  a  strict  sense  hardly  competition,  yet,  as  between  themselves, 
the  principle  which  warrants  competition  permits  also  reasonable 
efforts,  of  a  proper  kind,  which  have  a  direct  tendency  to  benefit 
one  party  in  his  business  at  the  expense  of  the  other.  Knowlton, 
C.  J.,  in  Berry  v.  Donovan,  188  Mass.  353.  This  struggle  between 
rival  unions  is  called  competition  in  Hoban  v.  Dempsey,  217  Mass. 
166. 


196  EQUITY  AND   ITS  REMEDIES 

Minasian  v.  Osborne,  210  Mass.  250  (to  pre- 
vent cross-handed  lasting  in  shoe  factory). 

Lawful  coercion  and  compulsion  by  strike  are 
limited  to  strikes  against  persons  with  whom  the 
organization  striking  has  a  trade  dispute,  and  do  not 
extend,  unless  under  statutes,  to  sympathetic  strikes 
or  boycotts.  The  purpose  of  sympathetic  strikes  is 
unlawful. 

Pickett  v.  Walsh,   192  Mass.  572  (a  sym- 
pathetic strike,41  unlawful  in  purpose). 
N.  E.  Cement  Gun  Co.  v.  McGivern,  218 
Mass.  198  (boycott;  sympathetic  strike). 

The  purpose  of  a  strike  is  unlawful  (apart  from 
statute)/2 

1.  Where  employees  seek  to  coerce  and  intimidate 
employers  to  discharge  other  workmen  by 
strike  or  threat  of  strike,  thereby  interfering 
with  the  employment  of  the  other  workmen. 

Plant  v.  Woods,  176  Mass.  492. 
De  Minico  v.  Craig,  207  Mass.  593  (foreman 
distasteful  to  strikers). 

2.  Where  the  strikers  seek  thereby  to  force  on 
their  employer  a  closed  shop,  or  to  compel  him 
to  submit  to  a  delegate  body  of  his  employees 
and  those  of  other  concerns,  all  questions  be- 
tween him  and  his  employees. 

Reynolds  v.  Davis,  198  Mass.  294. 


41  In  other  words,  a  strike  against  A,  with  whom  the  strikers  have 
no  dispute,  to  compel  A  to  force  B  to  yield  to  the  strikers'  demands 
that  B  discharge  C,  is  an  unjustifiable  interference  with  the  right  of 
C  to  enforce  his  calling,  if  he  is  a  workman,  as  he  thinks  best  (Pickett 
v.  Walsh,  supra),  or  with  the  right  of  C  to  transact  his  business,  il 
he  is  an  employer,  as  he  thinks  beet.  (Secondary  boycott.)  Aber- 
thaw  Construction  Co.  v.  Cameron,  194  Mass.  208  (a  strike  for  the 
purpose  of  inducing  a  breach  of  plaintiff's  contract  for  the  erection 
of  Christian  Science  Church,  for  the  purpose  of  compelling  it  to  employ 
union  men).    N.  E.  Cement  Gun  Co.  v.  McGivern,  218  Mass.  198. 

■  See  Mass.  St.  1914,  ch.  778. 


REPARATION  AND  PREVENTION  OF  TORTS     197 

3.    Where  the  strikers  seek  to  enforce  the  dis- 
charge of  a  fellow  workman  for  an  arbitrary 
cause  such  as  non-membership  in  a  union. 
Pickett  v.  Walsh,  192  Mass.  572. 

Whether  or  not  a  strike  is  lawful  in  purpose  is  a 
question  of  law. 

De  Minico  v.  Craig,  207  Mass.  593. 

What  is  lawful  for  an  individual  is  not  necessarily 
lawful  for  a  combination43  of  individuals.  The  result 
of  the  conspiracy  may  be  unlawful. 

Carew  v.  Rutherford,  106  Mass.  1. 

Pickett  v.  Walsh,  192  Mass.  572. 

Mogul    Steamship    Co.    v.    McGregor,    23 

Q.  B.  D.  598. 
Aberthaw  Cons.  Co.  v.  Cameron,  194  Mass. 
208  (see  decree  against  conspiring). 

Martell  v.  White,  185  Mass.  255  (in  this  case 
the  primary  boycott  was  lawful  but  the 
coercive  fines  for  carrying  it  out  were  not). 

Gompers  v.  Buck's  Stove  &  Range  Co.,  221 

U.  S.  418. 
Burnham  v.  Dowd,  217  Mass.  351  (boycott). 
But  see  Mass.  St.  1914,  ch.  778. 

A  combination  of  persons  under  contract,  not  to 
work  for  persons  with  whom  they  have  a  contract,  is, 
apart  from  statute,  an  unlawful  interference  with 
business,  although  each  may  break  his  own  contract 
without  thereby  committing  a  tort. 

Reynolds  v.  Davis,  198  Mass.  294  (Lynn 
building  trades  case,  where  open  shop 
rules  were  posted). 


43  It  is  suggested  in  Carew  v.  Rutherford,  that  one  person  may  at 
the  theatre  express  disapprobation  of  an  actor,  but  if  several  per- 
sons combine  to  employ  others  to  hiss,  etc.,  the  conduct  may  become 
actionable. 


198  EQUITY  AND  ITS   REMEDIES 

So,  although  a  member  of  a  union  seeking  employ- 
ment may  lawfully  offer  such  terms  as  to  result  in 
another  being  discharged  and  himself  employed,  the 
interference  by  a  combination  of  persons  to  obtain 
the  discharge  of  a  workman  under  contract,  because 
he  refuses  to  comply  with  their  wishes  for  their 
advantage  in  some  matter  in  which  he  has  a  right  to 
act  independently  (as  in  this  case,  by  refusing  to  join 
a  certain  union),  is  tortious. 

Berry  v.  Donovan,  188  Mass.  353  (tort) 
(The  foregoing  is  the  case  applicable  when 
a  manufacturer  signs  an  agreement  with  a 
union  that  he  will  employ  only  union  help 
and  then  discharges  his  non-union  men). 

But  a  contract  between  employers  and  a  labor  union 
that  the  former  will  employ  only  members  of  that 
union  where  these  are  available,  is  not  unlawful 
towards  members  of  another  union  where  the  incite- 
ments are  those  of  business  advantage  only. 
Hoban  v.  Dempsey,  217  Mass.  166.44 

What  acts  will  be  enjoined.*5 

Even  though  a  strike  be  lawful  in  purpose,  the  acts 
done  in  furtherance  of  it  may  be  tortious  and  may 
be  enjoined. 


44  In  this  case,  the  court  says  the  Sherman  Anti-Trust  Act  was 
not  made  an  issue. 

45  The  adequacy  of  the  legal  remedy  in  these  cases  has  caused  some 
confusion  in  Massachusetts.  The  rights  of  persons  formerly  em- 
ployed were  said  to  be  personal  rights,  not  property  rights,  and 
without  precedent  for  their  enforcement  in  equity,  in  the  case  of 
a  combination  among  employers  of  labor  not  to  employ  certain 
operatives  who  had  struck  in  one  of  their  shops,  and  the  putting 
of  the  names  of  such  persons  on  a  blacklist.  Worthington  v.  Waring, 
157  Mass.  421.  But  see  a  discussion  of  Worthington  v.  Waring  in 
Burnham  v.  Dowd,  217  Mass.  351.  See  also  in  Fairbanks  v.  Mc- 
Donald, 219  Mass.  291,  the  statement  of  the  court  that  upon  the 
point  of  refusing  relief  because  the  plaintiff's  right  was  not  a  prop- 
erty right,  Worthington  v.  Waring  is  now  doubted  as  an  authority. 
And  see  Mass.  St.  1914,  ch.  778,  which  purports  to  make  the  con- 
tract of  employment  a  personal  and  not  a  property  right. 


REPARATION  AND  PREVENTION  OF  TORTS     199 


In  a  strike  for  an  unlawful  purpose,  all  acts,  peaceful 
or  otherwise,  in  furtherance  of  the  strike  may,  except 
as  otherwise  provided  by  statute,  be  enjoined,  such  as 
the  conspiracy,46  the  payment  of  strike  benefits,  and 
the  putting  of  the  employer  on  an  unfair  list,47  as  well 
as  the  various  acts,  infra.4* 

In  a  lawful  strike  acts  amounting  to  interference 
with  business  by  coercion  of  employees,  trespass  to 
property,  personal  violence,  or  private  nuisance,  may, 
except  as  otherwise  provided  by  statute,  be  enjoined. 
So  the  levying  of  fines  on  members  and  the  threaten- 
ing to  do  so  as  a  means  of  coercing  them  into  remaining 
out,  a  matter  which  they  have  a  right  to  decide  for 
themselves,  is,  apart  from  statute,  unlawful. 

Willcutt  &  Sons  Co.  v.  Driscoll,  200  Mass. 
110  (following  Martell  v.  White,  185  Mass. 
255,  where  a  levied  fine  upon  a  member  of 
a  granite  association  for  trading  with  a 
given  concern  was  held  unjustifiable). 

Picketing  has  been  enjoined  when  part  of  a  general 
scheme  or  of  a  conspiracy  to  interfere  with  business 
by  coercion.  Picketing  may,  perhaps,  be  lawful49  if 
orderly  and  peaceable,  but  if  there  is  an  attempt  in 
combination,  by  means  of  force,  threats  or  intimida- 
tion, to  coerce  employees  or  those  who  wish  to  become 
so,  this  becomes  unlawful,  both  as  to  employers  and 
employees. 

Vegelahn  v.  Guntner,  167  Mass.  92. 

But  persuasion  not  amounting  to  intimidation  is 
lawful,  and  perhaps  social  ostracism,  if  without  threat 
in  business  point  of  view. 

Willcut  &  Sons  Co.  v.  Driscoll,  200  Mass.  110. 

See  Mass.  St.  1913,  ch.  690. 


46  Aberthaw  Cons.  Co.  v.  Cameron,  194  Mass.  208. 

47  See  Reynolds  v.  Davis,  supra. 

48  See  also  long  decree  in  Plant  v.  Woods,  176  Mass.  492. 

49  See  mention  of  lawful  persuasion  in  Plant  v.  Woods.     See  also 
Mass.  St.  1913,  ch.  690,  definiDg  and  permitting  peaceful  persuasion. 


200  EQUITY  AND  ITS   REMEDIES 

So  parading  with  a  placard  warning  workmen  away, 
if  part  of  a  general  scheme  to  coerce,  has  been  enjoined 
as  unlawful.60 

Sherry  v.  Perkins,  147  Mass.  212. 

But  see  effect  of  Mass.  St.  1913,  ch.  690," 
and  also  of  Mass.  St.  1914,  ch.  778. 

In  the  coercion  of  workmen  actual  force  is  not  a 
necessary  element.  A  suggestion  of  force  resulting  in 
coercion  of  persons  of  ordinary  courage  by  forcing 
them  to  a  course  they  would  not  ordinarily  pursue,  is 
sufficient,  and  this  is  true  whether  such  persons  are 
now  in  the  plaintiff's  employ,  with  or  without  contract, 
or  about  to  enter  his  employ. 

Vegelahn  v.  Guntner,.  167  Mass.  92. 

Damages  for  loss  already  sustained  and  for  the 
prospect  that  "inability  to  secure  work  may  extend 
over  a  substantial  period  of  time"  are  not  inconsistent 
with  an  injunction  in  the  same  decree. 

Fairbanks  v.  McDonald,  219  Mass.  291. 

The  public  nuisance  arising  from  the  blocking  of  an 
interstate  highway,  a  railroad,  may  be  made  the  basis 


50  Before  the  ground  of  interference  in  labor  cases  was  clearly 
established  in  Massachusetts,  picketing  and  placarding  were  said 
to  be  akin  to  private  nuisances.  Sherry  v.  Perkins,  supra  (placarding) 
Vegelahn  v.  Guntner,  supra  (picketing).  But  see  M.  Steinert  & 
Sons  Co.  v.  Tagen,  207  Mass.  394,  in  which  it  was  said  that  driving 
a  banner  about  during  a  strike  might  be  lawful,  whereas  the  same 
act  after  the  strike  was  over  might  not  be. 

51  This  act  reads  as  follows: 

"No  person  shall  be  punished  criminally,  or  held  liable  or  answer- 
able in  any  action  at  law  or  in  equity,  for  persuading  or  attempt- 
ing to  persuade  by  printing  or  otherwise  any  other  person  to  do  any- 
thing, or  to  pursue  any  line  of  conduct  not  unlawful  or  actionable 
cr  in  violation  of  any  marital  or  other  legal  duty,  unless  such  per- 
suasion or  attempt  to  persuade  is  accompanied  by  injury  or  threat 
of  injury  to  the  person,  property,  business  or  occupation  of  the 
person  persuaded  or  attempted  to  be  persuaded,  or  by  disorder  or 
other  unlawful  conduct  on  the  part  of  the  person  persuading  or  at- 
tempting to  persuade,  or  is  a  part  of  an  unlawful  or  actionable 
conspiracy." 


REPARATION  AND  PREVENTION  OF  TORTS     201 

of  interference  in  a  suit  by  the    Federal    Attorney 
General. 

In  re  Debs,  158  U.  S.  564. 

Parties  to  suit. 

If  a  union  is  unincorporated,  it  should  not  be  made 
plaintiff  or  defendant.52  The  words  "to  your  com- 
plainant unknown"  should  not  be  used,  but  persons 
should  be  named  as  proper  representatives  of  a  class,53 
with  the  allegation  that  the  members  are  too  numerous 
to  be  joined  as  parties. 

Reynolds  v.  Davis,  198  Mass.  294. 

Pickett  v.  Walsh,  192  Mass.  572. 

Hoban  v.  Dempsey,  217  Mass.  166. 

A  corporation  may  be  enjoined. 

Aberthaw  Construction  Co.  v.  Cameron,  194 
Mass.  208  (where  a  board  of  directors  of 
a  church  was  enjoined  as  a  "co-con- 
spirator"). 


62  A  union  was  made  defendant  in  Vegelahn  v.  Guntner,  supra, 
but  this  fact  escaped  attention  (see  Pickett  v.  Walsh  at  590). 

53  Multifariousness  and  misjoinder  of  plaintiffs  should  be  avoided. 
In  Reynolds  v.  Davis,  various  firms  doing  different  kinds  of  business 
were  joined  as  plaintiffs,  apparently  improperly,  but  the  court 
calls  attention  to  the  fact  that  no  objection  was  raised.  See  also 
Pickett  v .  Walsh,  supra. 


202  EQUITY  AND   ITS   REMEDIES 


CHAPTER    X. 
PECUNIARY  RELIEF  IN   EQUITY. 

A.  Accounting. 

B.  Exoneration. 

C.  Contribution. 

D.  Subrogation. 

E.  Marshaling. 

A.  Accounting. 
Equity  has  jurisdiction  in  accounting 
1.    Where  there  is  a  fiduciary  relation,1 

Hewitt  v.  Hayes,  205  Mass.  356  (rules  for 
following  trust  funds;  or  cestui  may 
prove  in  bankruptcy). 

Newell  v.  Hadley,  206  Mass.  335  (leading 
case  on  mingled  trust  funds). 

Hutchins  v.  Page,  204  Mass.  284  (partner- 
ship). 

Moore  v.  Rawson,  199  Mass.  493  (partner- 
ship, including  good  will). 

Campbell  v.  Cook,   193  Mass.  251  (agency 

to    manage    property    under    power    of 

attorney). 
Rolikatis  v.  Lovett,  213  Mass.  545  (attorney 

and  client). 
Falardeau    v.    Washburn,    199    Mass.    363 

(attorney  and  client). 


1  In  Massachusetts,  an  action  for  money  had  and  received  will 
also  lie  in  a  simple  case  of  money  held  by  the  defendant  to  which 
the  plaintiff  has  an  equitable  right.    Cole  v.  Bates,  186  Mass.  584. 


PECUNIARY  RELIEF  IN  EQUITY  203 

Whitman  v.  Mclntyre,  199  Mass.  436  (by- 
assignor  against  assignee  for  benefit  of 
creditors). 

O'Brien  v.  McNeil,  199  Mass.  164  (mort- 
gagor against  mortgagee  in  possession; 
rules  governing;  interest,  etc.). 

Atty.  Gen'l  v.  Bedard,  218  Mass.  378  (in- 
formation against  managers  of  charitable 
fund  for  support  of  strikers'  families). 

Von  Arnim  v.  American  Tube  Works,  188 
Mass.  515  (minority  stockholder  may 
require  accounting  of  officers  who  are 
misusing  corporation2  funds). 

Quinn  v.  Hayden,  219  Mass.  343  (a  joint 
enterprise). 

Edwards  v.  Willey,  219  Mass.  443  (one 
furnished  capital;  other  labor,  in  joint 
enterprise;  no  interest  allowed  former). 

The  ordinary  relation  of  creditor  and  debtor  does 
not  call  for  equitable  accounting,  even  though  trans- 
actions are  numerous  and  plaintiff  does  not  know 
them  all,  unless  there  is  great  complication.3 

Brown  v.  Corey,  191  Mass.  189  (broker  and 

customer). 
Peters  v.  Equitable  Life  Ass.  Co.,  196  Mass. 
143. 

2.    Where  there  is  great  complication  * 

Mass.  R.  L.,  ch.  159,  sec.  3,  cl.  6  (accounts 


3  The  rule  in  such  cases  is  that  application  should  first  be  made 
to  the  corporation  to  bring  the  bill;  but  in  some  instances  this  is 
unnecessary.  In  such  case  the  corporation  should  be  made  a  party 
defendant  and  relief  should  be  for  the  benefit  of  the  corporation. 
See  discussion  in  Chapter  VIII,  Part  B,  supra,  also  Pomeroy,  sec. 
1095. 

8  The  bill  should  always  allege  the  accounts  to  be  complicated, 
where  there  is  no  fiduciary  relation. 

*  See  note  4  on  page  204. 


204  EQUITY  AND  ITS   REMEDIES 

that  "cannot  be  conveniently  and  prop- 
erly adjusted  and  settled  in  an  action  at 
law"). 
Pierce  v.  Equitable  Life  Ass.  Soc,  145  Mass. 
56  (tontine  insurance  policy). 

Hallett  v.  Cumston,  110  Mass.  29. 

Thurston  v.  Hamblin,  199  Mass.  151  (to 
ascertain  net  profits;  inventor  against 
manufacturer). 

This  jurisdiction  is  due  not  to  absence  of  common 
law  remedy  but  to  its  inadequacy5  and  inconvenience. 

3.    Where   the  accounting  is   incidental   to   some 
other  right  of  relief. 

Sunter  v.  Sunter,  198  Mass.  137  (principles 
applied  in  constructive  trusts). 

Clark  v.  Storey,  208  Mass.  36  (bill  to  redeem 
from  fraudulent  foreclosure;  defendants 
charged  with  profits,  and  allowed  com- 
pensation). 

Noble  v.  Jos.  Burnett  Co.,  208  Mass.  75 
(incidental  to  injunction  against  use  of 
formulae). 

Reading  Stove  Works  v.  S.  M.  Howes  Co., 
201  Mass.  437  (for  profits  of  trade  name 
infringement). 

Nelson  v.  Winchell  &  Co.,  203  Mass.  75 
(trademark;  rules  for  determining  differ- 
ence between  damages  and  profits). 

McKay  v.  Coolidge,  218  Mass.  65  (judgment 


In  such  cases,  the  inconvenience  of  the  defendant's  answering 
in  this  state  will  be  considered  if  the  plaintiff  is  a  non-resident,  but 
not  where  he  is  a  resident.  Peters  v.  Eq.  Life  Ass.  Co.,  196  Mass. 
143. 

6  Much  of  equity's  control  of  estates  and  the  winding  up  of  cor 
porations  was  a  development  from  its  superior  procedure  in  account 
ing. 


PECUNIARY   RELIEF  IN  EQUITY  205 

creditor    in    tort    suit,    to    collect    from 
deceased  defendant's  legatees). 

When  an  account  is  of  such  a  nature  that  an  action 
may  be  brought  at  law  or  in  equity,  the  court  which 
first  acquires  jurisdiction  will  decide  the  case. 

Nash  v.  McCathern,  183  Mass.  345. 

In  accounting  the  following  rules  are  observed  as 
to  the  application  of  payments,  where  there  are 
several  debts  between  the  parties. 

1.  Money  paid  to  a  creditor  must  be  appropriated 
to  the  discharge  of  such  debt,  if  any,  as  the  debtor 
specifies  at  the  time  of  payment.  In  some  cases  his 
direction  has  been  inferred  from  circumstances. 

Reed  v.  Boardman,  20  Pick.  441. 
Gay  v.  Gay,  5  Allen  157. 

2.  If  the  debtor  does  not  specify,  expressly  or  by 
implication,  the  creditor  may  apply  the  payment  to 
any  account,  except  an  illegal  one,  before  action  is 
brought. 

Rohan  v.  Hanson,  11  Cush.  44  (illegal  one). 

He  may  even  apply  it  to  a  debt  barred  by  a  statute 
of  limitations,6  or  not  enforceable  because  of  the 
Statute  of  Frauds. 

Haynes  v.  Nice,  100  Mass.  327  (Statute  of 
Frauds). 

3.  If  neither  party  appropriates  the  payment  to 
a  specific  debt,  equity  will  appropriate  the  credits 
toward  the  discharge  of  debits  in  the  order  of  their 
time,  excluding,  however,  those  barred  by  a  statute 
of  limitations.  This  is  called  the  Rule  in  Clayton's 
Case. 

Crompton  v.  Pratt,  105  Mass.  255. 


•  But  he  may  not  by  such  part  payment  remove  the  bar  of  a  statute 
of  limitations  as  to  the  balance. 


206  EQUITY  AND  ITS  REMEDIES 


Newell  v.  Hadley,  206  Mass.  335  (rule  stated 
as  between  cestuis  and  distinguished  from 
facts  here). 

Hewitt  v.  Hayes,  205  Mass.  356  (modifica- 
tion of  rule). 

B.   Exoneration. 

Whenever  one  pays  a  debt7  for  which  another  is 
primarily  liable,  he  is  entitled  to  indemnity  from 
that  person.  There  is  usually  relief  at  law  under  an 
express  or  implied  contract. 

Tillotson  v.  Rose,  11  Met.  299  (surety,  who 

paid  a  note). 
Rice  v.  Southgate,  16  Gray  142. 

If  he  has  paid,  he  may  recover  only  what  he  has 
properly  paid,  with  interest  and  costs.  He  may 
compromise  the  debt  before  it  is  due,  and  then  sue 
on  maturity. 

Hayden  v.  Cabot,  17  Mass.  169. 

Tillotson  v.  Rose,  11  Met.  299. 

In  certain  cases  he  may,  after  he  is  liable  and  before 
he  has  been  sued,  compel  in  equity  the  principal  to 
settle  the  debt.     This  is  called  exoneration. 

Minot,  Pet'r,  164  Mass.  38. 
Wooldridge  v.  Norris,  L.  R.  6  Eq.  410. 
Rice  v.  Southgate,  16  Gray  142. 
Ascherson  v.  Tredegar  Dry,  etc.  Co.,  (1909) 

L.  R.  2  Ch.  404. 
Furber  v.  Dane,  203  Mass.  108. 
Pomeroy,  sec.  1417. 
Brandt  Sur.  and  Guar.,  sec.  243;  sec.  261. 

But  he  may  only  do  this  where  he  admits  his  own 
secondary  liability  if  the  principal  does  not  pay. 


7  This  principle  does  not  apply  to  ex  delicto  claims. 


PECUNIARY  RELIEF  IN   EQUITY  207 

Cotting  v.  Otis  Elevator  Co.,  214  Mass.  294. 

C.   Contribution. 

Where  one  of  several  persons  who  have  joint,  or 
joint  and  several,  contract  obligations,  or  who  are 
co-sureties,  has  paid  more  than  his  proportionate 
share  of  the  obligation,  he  is  entitled  to  recover  such 
excess  from  the  others  liable  with  him.8 

Wolmershausen  v.  Gullick,  L.  R.   (1893)  2 
Ch.  514  (history  and  review  of  English 
cases). 
Weeks  v.  Parsons,  176  Mass.  570  (between 

accommodation  indorsers). 
Ray  v.  Powers,  134  Mass.  22  (members  of 

a  club). 
Barnes  v.  Boardman,    152  Mass.  391   (be- 
tween life  tenant  and  reversioner). 

Newcomb  v.  Gibson,  127  Mass.  396  (sureties). 

Tomlinson  v.  Bury,  145  Mass.  346  (specific 
legatee  against  general  legatees). 

Putnam  v.  Misochi,  189  Mass.  421  (stock- 
holders). 

Labbe  v.  Bernard,  196  Mass.  551  (surety 
who  is  also  assignee  of  the  contract 
assured  must  share  with  co-surety  all 
advantage  from  contract). 

Where  in  a  will  property  specifically9  bequeathed 
is  appropriated  to  pay  debts  or  to  satisfy  the  claims 


8  While  such  relief  may  be  had  in  assumpsit  on  the  theory  of 
implied  contract,  it  is  not  always  adequate,  as,  for  example,  where 
several  co-sureties  must  be  sued  separately  or  where  one  is  insolvent, 
at  law  each  is  liable  for  an  aliquot  part  (Griff en  v .  Kelleher,  132  Mass. 
82) ;  in  equity,  ratably,  to  the  exclusion  of  insolvent  and  non-resident 
sureties.  Hendrick  v.  Whittemore,  105  Mass.  23.  Whitman  v. 
Porter,  107  Mass.  522.    Cary  v.  Holmes,  16  Gray  127. 

9  A  specific  legacy  is  one  which  separates  and  distinguishes  the 
property  bequeathed  from  the  other  property  of  the  testator,  so 
that  it  can  be  identified. 


208  EQUITY  AND  ITS   REMEDIES 

of  testator's  widow  who  has  waived  provisions  a 
legatee10  is  entitled  to  contribution  from  other  lega- 
tees under  the  will. 

Tomlinson  v.  Bury,  145  Mass.  346  (bill  for 
contribution). 

See  Mass.  Rev.  Laws,  ch.  135,  sec.  25  et  seq. 

Where  specific  legacies  must  themselves  contribute, 
they  do  so  proportionally,  except  where  the  legacy  is 
in  lieu  of  a  claim  or  debt,  or  the  terms  of  the  will  or 
the  position  of  a  legatee  otherwise  require. 

Farnum  v.  Bascom,  122  Mass.  282. 

A  surety  who  has  paid  a  debt  is  entitled  to  share 
in  all  security  taken  for  indemnity  by  a  co-surety, 
and  if  a  surety  is  released  without  the  consent  of  a 
co-surety,  the  co-surety  is  relieved  to  the  extent  of 
the  security  surrendered. 

Guild  v.  Butler,  127  Mass.  386. 

Newcomb  v.  Gibson,  127  Mass.  396. 

But  a  mere  renewal  of  a  note  by  the  maker  does 
not  give  a  co-surety  any  rights  to  be  relieved. 

North  Ave.  Sav.  Bank  v.  Hayes,  188  Mass. 
135. 

In  order  to  have  contribution  between  sureties, 
the  parties  must  be  co-sureties. 

Longley  v.  Griggs,  10  Pick.  121. 

Among  the  many  defenses  to  an  action  for  con- 
tribution are  that  the  plaintiff  surety  has  collateral 
or  has  paid  with  funds  of  principal  debtor;  that  time 
has  been  given  the  principal  debtor  or  a  co-surety 
without  the  defendant  surety's  consent;  that  the 
principal  debtor  or  a  co-surety  has  been  released 
by  the  creditor  or  by  the  plaintiff  surety;  that  the 


10  This  and  the  succeeding  paragraph  apply  as  well  to  devisees 
as  to  legatees. 


PECUNIARY  RELIEF  IN  EQUITY  209 

plaintiff  surety  has  released  or  lost  collateral;  that 
the  defendant  surety  is  bankrupt  or  has  a  set-off 
against  the  plaintiff  or  is  within  the  statute  of  lim- 
itations; or  that  the  plaintiff  surety  has  by  his  fraud 
contributed  to  the  default  of  the  principal. 
Spencer  on  Suretyship,  sec.  158. 

In  an  action  for  contribution  in  some  jurisdictions, 
it  is  a  defense  that  the  plaintiff  surety  paid  after 
the  claim  of  the  creditor  against  him  was  barred  by 
a  statute  of  limitations,  but  no  defense  that  the 
statute  has  run  as  against  the  creditor,  in  favor  of 
the  defendant  surety,  if  it  has  not  in  favor  of  the 
plaintiff  surety. 

Spencer  on  Suretyship,  sec.  165. 

D.  Subrogation. 

Whenever  one  not  a  volunteer,  for  the  protection 
of  his  own  rights,  pays  a  debt  for  which  another  is 
primarily  liable,  he  is  in  equity  subrogated  to  the 
creditor's  rights,  i.  e.  he  is  entitled  to  enforce  the 
right  the  creditor  had  against  the  debtor,  including 
the  application  of  all  the  securities  the  creditor  has 
from  the  debtor.   " 

Stetson  v.  Moulton,  140  Mass.  597. 
Blake  v.  Traders'  Bank,  145  Mass.  13. 
North  Nat'l  Bank  v.   Hamlin,    125   Mass. 
506  (negotiable  paper,  paid  by  indorser, 
kept  alive). 


11  The  right  of  subrogation  is  of  equitable  origin.  Skinner  v. 
Tirrell,  159  Mass.  474.  In  most  cases,  of  course,  a  surety  who  has 
paid  the  debt  may  have  indemnity  in  a  suit  at  law,  but  there  are 
cases  where  his  only  adequate  remedy  is  by  proceeding  to  enforce 
the  rights  of  the  creditor  against  the  principal  debtor  (which,  though 
gone  at  law,  are  kept  alive  for  certain  purposes  in  equ'ty).  For 
example,  where  the  surety's  right  against  the  debtor  is  barred  by  a 
statute  of  limitations,  but  the  creditor's  right,  being  on  a  sealed  in- 
strument, is  not;  or  where  the  surety's  right  against  the  debtor  is 
barred  by  a  discharge  in  bankruptcy,  but  the  creditor's  right,  being 
on  a  fiduciary  debt,  is  not.    Grower  v.  Grower,  29  Grattan  280. 


210  EQUITY   AND   ITS    REMEDIES 

Labbe  v.  Bernard,  196  Mass.  551  (surety, 
as  assignee  of  principal,  finished  a  con- 
tract). 

Lamb  v.  Montague,  112  Mass.  352  (second 
mortgagee  who  pays  first  mortgage). 

Athol  Sav.  Bank  v.  Bennett,  203  Mass. 
480  (judgment  creditor  who  paid  pledgee's 
note  secured  by  stock). 

Chicago  St.  Co.  v.  Car  Co.,  139  U.  S.  79 
(insurance  company  paying  loss). 

Newell  v.  Hadley,  206  Mass.  335  (leading 
case  on  doctrine  of  unjust  enrichment  as 
between  two  trust  funds  held  by  one 
trustee). 

Fitcher  v.  Griffiths,  216  Mass.  174  (wife 
paying  mortgage  given  by  husband,  sub- 
rogated). 

It  is  immaterial  that  the  security  has  been  given 
at  a  time  subsequent  to  the  making  of  the  contract 
or  without  the  knowledge  of  the  surety. 

Johnson  v.  Bartlett,  17  Pick.  477. 

Hart  v.  Western  R.  R.  Co.,  13  Met.  99 
(subrogation  of  an  insurance  company  to 
tort  rights). 

A  mere  volunteer  has  no  rights  of  subrogation. 

Pearmain  v.  Mass.  Hosp.  Life  Ins.  Co., 
206  Mass.  377  (second  mortgagee  paying 
taxes). 

Aetna  Life  Ins.  Co.  v.  Middleport,  124  U.  S. 
534. 

Skinner  v.  Tirrell,  159  Mass.  474  (one  fur- 
nishing a  married  woman  money  to  buy 
necessaries  is  not  subrogated  to  the  rights 
of  one  who  furnished  necessaries). 

Title  Guarantee  &  Trust  Co.  v.  Haven,  196 
N.  Y.  487. 


PECUNIARY   RELIEF   IN   EQUITY  211 

When  a  purchaser  of  land  agrees  with  a  mort- 
gagor to  assume  and  pay  a  mortgage  debt  but 
fails  to  do  so,  the  mortgagor,  if  compelled  to 
pay,  will  be  subrogated  to  the  rights  of  the  mortgagee 
against  the  premises,  or  may  look  to  the  personal 
responsibility  of  the  purchaser. 

Dean  v.  Toppin,  130  Mass.  517. 
Locke  v.  Homer,  131  Mass.  93. 
Reed  v.  Paul,  131  Mass.  129. 

One  who  has  a  lien  on  land,  may,  under  some 
conditions,  be  subrogated  in  equity  to  the  owner's 
chose  in  action  against  another  for  damages. 

Bates  v.  Boston  Elevated  Railway,  187  Mass. 
328. 

One  who  sells  land  subject  to  a  tax  and  later  is 
sued  for  and  pays  the  tax,  is  subrogated  to  the  tax 
collector's  lien  on  the  property. 

Webber  Lumber  Co.  v.  Shaw,    189   Mass. 
366. 

So  although  the  purchase  of  merchandise  in  bulk 
without  certain  formalities  is  by  statute12  fraudulent, 
the  purchaser,  if  innocent  of  actual  fraud,  will  be 
subrogated  to  the  claims  of  secured  creditors  he  has 
paid. 

Adams  v.  Young,  200  Mass.  588. 

A  surety  who  has  paid  a  debt  may  ordinarily 
recover  by  subrogation  or  by  way  of  indemnity  only 
his  actual  loss,13  but  has  a  right  of  action  whenever 
he  pays  any  part  of  the  obligation. 

The  surety's  remedy  is  conditional  on  his  satis- 
fying the  obligation  or  some  part  of  it,  and  arises 


"  Mass.  St.  1903,  ch.  415. 

13  Compare  Fowler  v.  Strickland,  107  Mass.  552,  in  which  an 
accommodation  indorser  on  a  $2000  note  for  the  maker's  benefit, 
bought  tbe  note  for  $1000  from  the  holder,  who  had  paid  $2000  for 
it.    He  was  entitled  to  recover  from  the  maker  $2000. 


212  EQUITY    AND    ITS    REMEDIES 

only  then,  except  that  he  may  compromise  a  claim 
before  it  is  due,  and  wait  until  it  matures  to  assert 
his  right. 

Thayer  v.  Daniels,  110  Mass.  345. 

Chandler  v.  Brainard,  14  Pick.  285. 

Doolittle  v.  D wight,  2  Met.  561. 

To  avoid  circuity  of  action  equity  will,  however, 
protect  those  who  by  an  enforced  payment  will 
become  entitled  by  subrogation  to  indemnity  from 
the  one  who  is  to  receive  the  payment. 

Harmon  v.  Weston,  215  Mass.  242. 

A  surety,  by  failure  to  raise  against  the  creditor 
his  personal  defenses  (such  as  a  statute  of  limitations 
or  the  Statute  of  Frauds),  does  not  lose  his  right 
to  subrogation  or  indemnity. 

Beal  v.  Brown,    13  Allen   114   (Statute  of 
Frauds). 

Shaw  v.   Loud,   12    Mass.  447  (a  statute  of 
limitations) . 

A  surety,  by  failure  to  raise  against  the  creditor 
such  defenses  as  would  have  excused  the  principal 
debtor,  does  not  lose  his  right  to  indemnity  if  he  acts 
in  good  faith  and  without  knowledge  of  the  defense. 

Warner  v.  Morrison,  3  Allen  566. 

Frith  v.  Sprague,  14  Mass.  455. 

E.   Marshaling. 

One  who  has  a  right  to  payment  from  a  single 
fund  may  compel  another  who  has  a  right  to  pay- 
ment from  more  than  that  one  fund  to  exhaust  those 
funds  upon  which  the  first  has  no  claim.  This  is 
marshaling. 

Carter  v.  Tanner's  Leather  Co.,  196  Mass. 
163. 

Adams  v.  Young,  200  Mass.  588. 


PECUNIARY   RELIEF  IN   EQUITY  213 

Baker  v.  Davie,  211  Mass.  429. 

Bates   v.   Boston   El.    Railway,    187    Mass. 

328. 
Pomeroy  sec.  1414. 

The  doctrine  will  not  be  enforced  to  the  prejudice 
of  a  creditor  against  whom  it  is  sought  to  be  applied. 
Carter  v.  Tanner's  Leather  Co.,  196  Mass. 
163. 


INDEX 


INDEX  217 

A 
ACCIDENT 

(see  MISTAKE) 

relief  from,  in  equity  and  at  law      86-88 

jurisdiction  in      86 

relief  from  lost  instruments      86 

defective  execution  of  powers       87 

preventing  defense  on  merits       87 

forfeitures 87 

arising  in  settlement  of  estates        88 

alteration  or  mutilation  of  instruments      88 

no  relief  from  express  agreement 88 

no  relief  against  bona  fide  purchaser      88 

distinguished  from  mistake 89 

ACCOUNTING. 

between  partners 19,  133 

equitable  jurisdiction  in 202-206 

where  there  is  fiduciary  relation      202,  203 

between  trust  funds       202 

where  there  is  complication 203 

incidental  to  other  relief       . 204 

at  law  or  in  equity 205 

rules  observed  in        205 

ACTIONS  . 

(see  EQUITY  JURISDICTION;  CONTRACT;  COURT  OF 
COMMON  LAW) 

early,  at  common  law : 3 

early,  in  chancery       3,  4 

later,  in  chancery 4 

against  parties  within  the  jurisdiction 34 

affecting  property  outside  the  jurisdiction         34,  35 

equitable  restraint  of  actions  at  law       35,  160-162 

relating  to  local  property  of  non-residents 36,  37 

ADEQUATE  REMEDY  AT  LAW 

(see  INADEQUACY  OF  LEGAL  REMEDY) 

definition  of 24 

absence  of,  basis  of  equity  relief      25 

presence  of,  a  defense  to  equitable  procedure       ....  26 

where  subject  matter  is  ordinary  personal  property        .  27 

failure  to  raise  defense  of      30 

to  enforce  assignments,         .    , 54 

for  fraud  in  some  cases         98 

where  contract  to  convey  has  been  executed  by  vendor  118 

if  price  has  been  put  on  unique  subject  matter        .    .    .  120 

discussion  of,  in  labor  disputes        193 


218  INDEX 


ADMINISTRATORS  AND  EXECUTORS 
(see  DEATH;  WILLS). 

not  considered  assignees       56 

duty  to  perform  decedent's  agreements  for  sale  of  land  81,  82 

accidents  by,  relieved  from  in  equity      88 

are  volunteers 96 

certain  purchases  and  sales  by,  fraudulent 101 

may  bring  bill  to  set  aside  fraudulent  conveyance       .    .  106 

AGENT. 

of  non-resident  may  enjoin  enforcement  of  contract  here        97 
fraudulent  representation  of,  as  ground  for  relief     .   .    .       100 

certain  purchases  and  sales  of,  fraudulent 101,  102 

vendor  of  good  will  may  not  compete  as      132 

AGREEMENT. 

(see    SEALED    INSTRUMENTS:    WRITTEN    INSTRU- 
MENTS; CONTRACT). 

ALTERATION. 

of  instruments,  relief  from, 88 

AMENDMENTS    . 

to  and  from  equity        9,  116 

ARBITRATION. 

certain  agreements  for,  not  enforcible        121,  122 

certain  agreements  for,  enforcible 122 

as  condition  precedent  to  suit      _ 122 

damages  for  revocation  of  agreement  to  submit  to      .    .       122 
award  after,  specifically  enforced        123 

ASSETS. 

of  partnership  may  be  distributed 18 

distribution  of,  in  equity,  follows  law 41 

ASSIGNEE. 

(see  ASSIGNMENTS). 

his  right  to  sue  at  law  in  assignor's  name      52 

his  right,  under  statutes,  to  sue 54 

may  sue  in  equity  on  equitable  assignment 57 

rights  of,  to  enforce  restriction        137,  138 

ASSIGNMENTS. 

certain,  not  recognized  at  early  common  law 52 

how  made 53 

delivery  as  an  element  in      53 

as  affected  by  modern  statutes 54 

what  choses  in  action  are  assignable       54-56 

equitable      52,  57 

of  fractional  parts  of  funds 57 

certain  voluntary  agreements  not  assignable        ....  58 


INDEX  219 


stranger  recognized  as  assignee,  in  equity         58 

orders  as      59 

when  assignee's  title  vests 60 

nature  of  assignee's  title       60 

liability  of  lessee's  assignee 60 

rights  under  successive      60 

under  fictitious  name,  valid          61 

none,  of  right  to  sue  for  fraud 112 

of  rights  in  equity  to  set  aside  instruments  for  fraud  112 

of  trade  marks  and  names 187 

ATTORNEY. 

client  not  in  pari  delicto  in  champertous  contract 102 

purchases  and  sales  by,  as  constructive  fraud  against 

client      101,  102 

service  on,  where  defendant  a  non-resident     162 

accounting  with      202 

ATTORNEY  GENERAL 

may  seek  injunction  against  monopolies 128 

should  bring  bill  to  enjoin  public  nuisance      176 

AUTHOR. 

may  have  relief  for  infringement  of  copyright    183 

AWARDS. 

specific  enforcement  of,  after  arbitration     123 

B 

BANK  BOOKS. 

as  subjects  of  assignment       53 

BANKRUPTCY. 

trustee  in,  may  set  aside  fraudulent  conveyance    105,  106 

not  ground  for  relief ,  where  conveyance  is  of  trust  prop- 
erty   105 

statutes  defining  fraudulent  preference     108 

of  debtor  as  ground  for  specific  performance       120 

effect  of  sale  of  good  will,  following 132,  133 

as  a  ground  for  enjoining  proceedings  in  state  courts    . .  161 

as  a  defense  to  contribution   209 

as  a  ground  for  subrogation   209 

BILL  TO  REACH  AND  APPLY. 

an  equitable  interest    105 

BONA  FIDE  PURCHASER. 

without  notice      ; 61 

protected,  where  relief  sought  against  accident      88 

protected  where  relief  sought  against  mistake    96 


220  INDEX 


BOND. 

(See  SECURITIES). 

jurisdiction,  to  chancer    5 

jurisdiction  to  relieve  against  penalties    7 

benefit  of,  assignable    55 

of  indemnity  in  suits  on  lost  instruments     86,  87 

holder  of,  may  bring  certain  suits     164 

in  patent  litigation  182 

BOUNDARIES. 

projection  of  structure  over,  enjoined       170 

BOYCOTTS  AND  STRIKES. 

relief  by  injunction  in      191-201 

BUSINESS. 

(see  PARTNERSHIP:  PARTNERS). 

specific  performance  of  agreement  to  sell 120 

contracts  not  to  compete  in    129  et  seq. 

contracts  involving  sale  of  good  will  of    129  et  seq. 

whether  sale  of,  implies  agreement  not  to  compete        . .  133 

restrictions  following  involuntary  sale  of     132,  133 

right  to  advertise  as  successors  of     133 

restrictions  enforced,  after  sale  of 136,  137 

landlord's  right  to  enjoin  particular  kinds 180 

license  to  conduct,  as  a  defense  to  nuisance  action    ....  180 

injury  to,  as  an  element  in  trademark  suits    185 

injury  to,  as  an  element  in  unfair  competition    188 

injunctions  to  restrain  interference  with 191-201 

C 
CANCELLATION. 

(See  RESCISSION;  REFORMATION). 

of  deed  of  foreign  property 35 

of  contract,  as  form  of  relief  in  mistake 93 

of  fraudulent  conveyances 105 

of  executory  contract,  for  fraud     110 

CERTIORARI. 

adequate  equitable  remedy  a  defense  to 26 

as  an  adequate  remedy  for  certain  acts  of  officials 163 

CHATTEL  MORGAGES. 

of  personalty  to  be  acquired,  operate  how  57 

CHATTELS. 

(see  PERSONAL  PROPERTY). 

CHOSES  IN  ACTION. 

assignment  of    52-60 

what,  are  assignable 54,  55 

estoppel  from  entrusting  another  with  evidence  of     ....  74 

fraudulent  transfer  of 104 


INDEX  221 


CLAYTON'S  CASE,  RULE  IN 

defined   205 

CLERGYMAN. 

certain  contracts  with  parishioner,  voidable        102 

COMPETITION. 

(see  MONOPOLY). 

enforcement  of  contracts  not  to  compete 129  et  seq. 

limited  by  sale  of  good  will,  when 130  et  seq. 

no  justification  for  interference  with  contract 194,  195 

COMPLETE  RELIEF. 

in  equity,  after  jurisdiction  had     30 

COMPROMISE. 

no  relief  from  mistake  at  basis  of 92 

agreement  as  to  will,  enforced    119 

one  liable  for  another's  debt  may      206,  212 

CONCURRENT  JURISDICTION. 

in  some  cases     28 

necessity  for  election,  no  bar  to , 75 

CONSIDERATION. 

in  assignments      52 

in  certain  estoppels 73 

inadequacy  of,  as  ground  for  relief        100 

usually  absent,  in  fraudulent  conveyances         106 

given  for  deea  fraudulently  obtained,  must  be  restored 

on  rescission 113 

inadequacy  of,  as  bar  to  specific  performance 154 

CONSPIRACY. 

as  an  element  in  labor  disputes       193-201 

CONSTRUCTIVE  FRAUD. 
(see  FRAUD). 

equitable  relief  from  results  of 100  et  seq. 

different  classes  of 100  et  seq. 

statute  of  frauds  does  not  apply  to 113 

one  guilty  of,  may  yet  have  subrogation       113 

CONTEMPT. 

penalty  for  disobedience  of  decree      34,  116 

CONTRACT. 

(see  AGREEMENT;  COVENANT;  CHOSES  IN  ACTION), 
when  one  rescinds,  he  must  place  other  in  statu  quo    .   .        46 

certain,  not  assignable 56 

present  interest  in,  may  be  assigned       56 

estoppel  by      70 


222  INDEX 


conversion  from  land  contracts        78-84 

validity  of,  as  requisite  of  conversion 81 

between  certain  fiduciaries,  voidable      102 

action  of,  for  fraudulent  violation  of  agreement       .    .    .       109 

action  of,  with  attachment,  to  remedy  fraud 109 

action  of { to  recover  money  obtained  by  fraud     ....       109 

cancellation  or  rescission,  for  fraud 110 

specific  performance  of , 116  et  seq. 

enforcements  of  affirmative      117 

about  certain  chattels  enforced        118 

to  sell  business 120 

to  sell  unique  articles  needed  in  business       120 

negative  in  form,  when  enforced 126  et  seq. 

affirmative,  requiring  the  performance  of  labor    .    .    .    123-126 

negative,  involving  personal  services      126-128 

limiting  use  of  property        128,  129 

not  to  compete,  express  and  implied       129  et  seq. 

enforcement  of  those  partly  performed      143-147 

partial  performance  of 147 

time  the  essence  of  the  contract      148-151 

marketable  title  necessary  to  enforcement  of 151 

mutuality  an  essential  feature      152 

necessity  and  adequacy  of  consideration  in       154 

sundry  defences  to  specific  performance  of 155 

one  breaking,  cannot  recover  payment  made 157 

when  option  to.render  void,  is  on  vendor      157 

injunctions  to  restrain  interference  with 191-201 

indemnity  in  action  of,  after  payment  of  another's  debt        206 

as  basis  of  contribution 207 

inadequacy  of  relief  in  action  of,  between  co-sureties  207 

CONTRIBUTION. 

when  one  may  have       207-209 

at  law  and  in  equity      207 

defenses  to 208,  209 

CONVERSION. 

(see  EQUITABLE  CONVERSION). 

CONVEYANCE. 

(see  FRAUDULENT  CONVEYANCE;  RECORDING  ACTS; 
TITLE;  DEEDS). 

CO-OWNERS. 

(see  CO-TENANTS;  JOINT  OWNERS). 

suits  between,  of  personalty 20 

COPYRIGHTS. 

nature  of      183 

bills  to  restrain  infringement  of       183 


INDEX  223 


CORPORATION. 

adequacy  of  legal  relief  in  contracts  relative  to  shares  in  27 

estopped  to  deny  validity  of  incorporation        70 

fraudulent  contracts  affecting  officers  of 101 

promoter's  frauds  affecting 103 

quo  warranto  and  mandamus  against  officials  of          .  162,  163 

restraint  of  acts  of  officials  of       162,  164 

may  be  enjoined  as  a  conspirator  in  labor  case         .    .    .  201 

when  stockholders  may  require  accounting  of  officers  of  203 

CO-TENANTS. 

suits  between      19 

waste  between         166 

one  of,  may  restrain  stranger's  trespass 172 

COURTS  OF    COMMON  LAW. 

early 1 

in  England       2, 3 

equitable  defenses  in         8 

amendment  of  suits  to  and  from •    •    •  9 

no  jurisdiction  over  suits  between  husband  and  wife  12 

suits  in,  between  partners 16,  17 

adequacy  of  remedies  in        24 

formerly  did  not  recognize  assignments 52 

remedies  in,  for  fraud 109 

equity  jurisdiction  to  restrain  suits  in 160-162 

jurisdiction  of,  in  waste        165 

jurisdiction  over  simple  money  trusts 202 

concurrent  jurisdiction  in  accounting 205 

indemnity  in       206,209,211 

contribution  between  sureties  in      207 

COURTS  OK  EQUITY. 

(see  EQUITY  JURISDICTION). 

COVENANT. 

(see  CONTRACT;  AGREEMENT). 

not  to  compete,  when  enforcible  129-133 

running  with  the  land,  at  law      135 

in  deed  and  lease 135 

enforcible  between  those  having  priority 135 

obligation  of  grantee  in  deed  poll,  not  a        135 

may  be  a  personal  contract      135 

effect  of  privity  of  estate  on 135 

restricting  use  of  realty  or  personality       137 

CREDITOR. 

avoidance  of  fraudulent  conveyance  by 103  el  seq. 

conveyance  to,  not  a  preference  at  common  law      .   .    .  108 


224  INDEX 


conveyance  fraudulent  against,  good  between  parties     .  108 

may  not  always  have  equitable  accounting       203 

rules  for  accounting  witn  debtor      205 

application  of  payments  by      205 

CREDITORS'  BILLS. 

because  of  inadequacy  of  legal  remedy       26 

CURTESY. 

how  affected  by  conversion      82 

D 
DAMAGES. 

in  money  in  equity 24 

rule  for,  in  rescission      Ill 

as  a  form  of  equitable  relief  for  fraud Ill 

may  be  assessed  in  equity,  after  refusal  of  specific  per- 
formance             116 

inadequacy  of  legal,  as  ground  for  specific  performance         117 
recoverable  for  revocation  of  agreement  to  arbitrate  122 

for  breach  of  restrictive  covenants      137,  141 

where  land  freed  of  restrictions  by  Land  Court    ....       142 

in  equity  for  waste 168 

trespass  restrained,  though  damage  nominal     ....  169  ,170 

alternative  decree  for,  in  trespass 170 

in  place  of  injunction  to  restrain  disturbance  of  easements      173 

nuisance  restrained,  though  damage  nominal 178 

may  accompany  injunction  against  nuisance        ...  179,  181 
profits  allowed  in  decrees  for  copyright  violation     .    .    .       183 

for  violation  of  trade  secrets .       190 

profits  and  damages  in  various  infringement  suits   _    .  190,  204 
as  affected  by  length  of  contract,  in  malicious  inter- 
ference cases 194 

an  element  in  interference  with  business  or  employment  194,  200 

distinguished  from  profits 204 

rules  for,  in  certain  accounting  cases      204 

DEATH. 

of  agreed  vendor,  results  of      81,  82 

of  agreed  vendee,  results  of 81,  82,  83 

of  party  against  whom  equitable  right  to  relief  for  mis- 
take exists        96 

of  one  who  has  made  a  fraudulent  conveyance     ....       105 
does  not  bar  following  trust  property,  procured  by  fraud      112 

a  bar  to  action  of  tort  for  fraud      . 113 

of  partner,  affect  in  limiting  competition 132,  133 

DEBTS. 

of  partnership,  contribution  as  to       19 

merger  of  contract  debt,  in  judgment 67 


INDEX  225 


presence  of,  as  basis  for  creditor's  relief  from  conveyance  105 

rules  where  there  are  several,  between  same  parties    .    .  205 

indemnity  after  payment  of  another's 206 

compelling  exoneration      206 

DECEIT. 

(see  MISREPRESENTATION;  FRAUD;  ESTOPPEL). 

as  ground  for  estoppel 71,  72,  73 

as  fraud  in  equity 99  et  seq. 

tort  remedy  for 109 

how  far  an  element  in  trade  name  relief        188 

DECREES. 

(See  EQUITY  JURISDICTION). 

in  interpleader        22 

are  in  personam       34 

disobedience  of,  how  punished 34 

may  affect  property  outside  the  jurisdiction 34,  35 

affecting  local  property  of  non-residents 36 

against  minors  and  insane  persons      37 

restraining  suits  at  law      37 

different  forms  of,  in  equity     110-112 

rescinding  deed  obtained  by  fraud,  should  restore  defen- 
dant's consideration  113 

rendered  effective  by  enjoining  law  suits       160-162 

erroneous,  effective  because  plaintiff  did  not  appeal    .    .       170 

in  nuisance  cases        181 

in  patent  infringement  suits 182 

in  copyright  cases       183 

DEEDS. 

(see  WRITTEN  INSTRUMENTS;  LOST  INSTRUMENTS). 

laches  no  defense  to  void      51 

as  a  means  of  assigning  a  chose  in  action      53 

right  of  entry  for  breach  of  condition  in,  not  assignable  56 

statutes  for  recording        61-64 

notice  as  affecting      61-64 

estoppel  to  deny  effect  of  67,  68 

title  by  estoppel  from  warranty  (or  quitclaim),    ....         68 

mistake  in,  when  and  how  remedied 90,  94  et  seq. 

rescission  of  deed  fraudulently  obtained,  restores  defen- 
dant's rights 113 

specific  re-delivery  of 119 

whether  covenants  in,  run  with  the  land       135 

acceptance  of,  may  create  restrictions 136,  137,  138 

DEFENSES. 

(see  STATUTE  OF  FRAUDS;  STATUE  OF  LIMITATIONS). 

equitable,  in  law  cases 8 

in  interpleader        21,  22 


226  INDEX 


that  legal  relief  is  adequate      26,  28 

failure  to  raise  defense  of  adequate  legal  remedy     .    .    .29,  30 

plaintiff's  fraud  as  a  defense 48 

estoppel 64-76 

to  bills  to  relieve  from  accident       88 

to  bills  to  relieve  from  mistake 96 

to  bills  for  fraudulent  conveyance 106,  108 

that  conveyance  was  in  execution  of  oral  trust     ....       107 

release  obtained  by  fiduciary,  may  not  be 109 

as  a  form  of  equitable  relief      110 

to  specific  performance,  as  remedy  for  fraud 112 

laches  as  a  defense  to  fraud      112 

that  plaintiff  was  party  to  fraud 112 

death  of  plaintiffs  as  defense  to  action  for  fraud      ...       113 
antecedent  fraud  may  not  be  defense,  because  merged 

in  contract 113 

to  suit  for  purchase  price  of  land 118 

anti-trust  act  must  be  pleaded 128 

to  enforcement  of  restrictions 141-143 

Statute  of  Frauds,  in  specific  performance 143 

that  time  is  of  the  essence  of  contract 148-151 

that  title  not  marketable      151,  152 

lack  of  mutuality 152-154 

inadequacy  of  consideration 154 

sundry  defenses  to  specific  performance 155 

lack  of  identification  of  property  in  bill  to  perform     .    .       157 

equitable,  as  basis  of  injunction  against  suit 160 

omission  to  present,  not  ground  for  relief  in  equity   .  160 

to  action  for  waste 167,  168 

to  actions  for  trespass       171-173,  177 

prescription  as  a  defense  to  bill  for  nuisance  or  trespass         177 

to  bills  for  nuisance       177-181 

to  bills  for  infringement  of  trademarks       187,  190 

to  bills  for  infringement  of  patents,  marks,  etc.       ...       190 

to  bills  for  contribution 208,  209 

to  bills  for  subrogation      212 

to  bills  for  marshaling       212 

DEMURRER  IN   EQUITY. 

where  legal  remedy  adequate       28 

where  laches  appears  in  bill      50 

where  property  not  identified  in  bill  to  perform       .    .    .  157 

DIRECTORS. 

(See  CORPORATIONS). 

secret  profits  by,  as  constructive  fraud      103 

DISCHARGE. 

of  mortgage,  corrected  to  assignment 98 

DISCRETION. 

as  to  amending  to  and  from  equity 9,  116 


INDEX  227 


as  to  jury  issues      33 

revision  of,  as  to  jury  issues 33 

refusal  to  foreclose  foreign  mortgage  as  a  matter  of        .  35 

as  to  specific  performance 116 

to  assess  damages  after  refusal  of  specific  performance  .  116 

DONATIONS   MORTIS   CAUSA. 
(see  GIFTS), 
good  between  husband  and  wife      15 

DOWER. 

estoppel  from  release  of         69 

how  affected  by  conversion      82 

of  widow  of  agreed  vendee       82,  83 

DRAMATIC   COMPOSITION. 
(see  PLAYS). 

DRUNKENNESS. 

of  partner,  as  ground  of  dissolution 18 

of  contracting  party,  as  fraud      101 

DURESS. 

(see  UNDUE   INFLUENCE). 

of  contracting  party,  as  ground  of  fraud 101 

E 
EASEMENTS. 

legal,  nature  of       133-134 

equitable  (see  RESTRICTIONS). 

doctrine  of  part  performance  applied  to 147 

restraint  of  disturbance  of 172,  173 

ELECTION. 

of  remedies,  a  form  of  estoppel 74 

where  there  is  none 75 

where  two  suits  for  same  cause 75 

does  not  prevent  concurrent  remedies 75 

under  Workingmen's  Compensation  acts 75 

to    proceed   for    damages,    after   specific    performance 

refused      116 

between  suit  at  law  or  specific  performance      155 

EMINENT  DOMAIN. 

conversion  of  proceeds,  where  land  taken  by 78 

EMPLOYER  AND  EMPLOYEE. 
(see  LABOR;  BUSINESS), 
duty  of  employee  not  to  reveal  trade  secrets         .  127,  189,  190 

employer's  right  in  inventions      190 

injunctions  in  disputes  between 191-201 


228  INDEX 


ENGLAND. 

early  courts  in         1,  2,  3 

present  law  courts      2 

early  law  actions  in 3 

adequacy  of  legal  remedy  in 26 

chancery  jurisdiction  in,  as  affecting  right  to  jury  trial  32 

EQUITABLE  CONVERSION. 

based  on  maxim      45 

definition  of 76 

enforced  where       76 

occur  when      77,  78 

duration  of      78 

of  proceeds  of  insurance 79 

re-conversion 79 

Statue  of  Frauds  in 80 

in  determining  inheritance  taxes      80 

in  land  contracts 80 

effect  of  death  of  agreed  vendor  or  vendee 81,  82 

effect  on  dower  or  curtesy        82,  83 

effect  of  loss  before  conveyance       83,  84 

EQUITABLE  EASEMENTS. 
(see  RESTRICTIONS). 

EQUITABLE  LIENS 

the  maxim  that  supports  them 45 

EQUITABLE   MORTGAGE. 

where  debtor  has  agreed  to  give  mortgage 121 

EQUITABLE   REPLEVIN. 

jurisdiction  of  equity  in        119 

EQUITY  JURISDICTION. 

history  of  the  rise  of 2-4 

history  of  in  Massachusetts      5 

extent  of  present  system       6 

effect  of,  on  legal  rules      7 

effect  of,  on  statutes      7 

an  outline  of 9 

because  of  subject  matter 9 

because  of  remedy  sought 10 

because  of  parties  seeking  remedy       12  et  seq. 

actions  exclusively  within 12  et  seq. 

effect  of  adequacy  of  legal  remedy  on        24  et  seq. 

concurrent  with  law 24,  25,  28 

because  of  legal  inadequacy      24 

not  given  in  some  cases  by  waiver  of  defense        .    .    .    .  28,  29 

once  obtained,  retained  for  all  purposes 30 

dismissal  for  want  of     30,  31 


INDEX  229 


formerly  dependent  on  amount  involved       31 

retention  of,  though  changes  pendente  lite      31 

is  in  personam         34 

over  persons    . 34 

over  property  outside  the  jurisdiction 34,  35 

to  enjoin  suit  in  another  state      35 

to  enjoin  against  tort  in  another  state        35 

to  foreclose  foreign  mortgage       35,  36 

over  local  property  of  non-residents        36,  37 

affords  relief  where  new  right  created 40 

follows  the  law 40 

one  who  seeks,  must  do  equity 45 

plaintiff  in,  must  have  clean  hands 46 

will  not  determine  respective  rights  of  wrong-doers     .    .         49 

over  assignments 52,  57,  58 

in  cases  of  equitable  conversion 76 

to  relieve  from  accident        86-88 

to  relieve  from  mistake 88-98 

to  relieve  from  fraud      98-114 

to  recover  and  apply  equitable  interest      105 

to  enforce  contracts  specifically       115-157 

over  replevin       119 

to  enjoin,  generally 158-201 

to  restrain  law  suits  and  judgments 160-162 

to  restrain  acts  of  officials 162-164 

in  specific  reparation  and  prevention  of  torts        .    .    .    165-201 

in  accounting      202-206 

in  exoneration 206 

in  contribution 207-209 

in  subrogation 209-212 

in  marshaling      212-213 

ESTOPPEL 

(see  RES  JUDICATA). 

adverse  equity  sometimes  raised  by 46 

under  recording  acts      62,  73 

definition  of 64 

legal      65 

by  record .    65,  66,  67 

against  suit  by  same  plaintiff,  in  another  capacity      .    .         65 

by  deed 67,  68 

title  by 68,  69,  74 

from  release  of  dower        69 

in  pais      69 

from  contract      70 

equitable  (by  misrepresentation) 70,  71,  72,  73,  74 

from  entrusting  another  with  chattels 74 

none  from  earlier  inconsistent  defense 67 

election  of  remedies,  as     74,  75 


230  INDEX 


waiver  as 75,  76 

creation  of  restrictions  by 142 

doctrine  of  part  performance  based  on  .......    .       144 

EVIDENCE. 

same  rules  in  equity  as  at  law      41 

nature  of,  required  to  correct  mistake  in  instrument  .    .        97 

EXECUTION. 

(see  JUDGMENT). 

to  restrain  collection  of     160-162 

equitable  set-off  of 160 

EXECUTOR. 

(see   ADMINISTRATORS  AND  EXECUTORS;    DEATH; 
WILLS). 

EXONERATION. 

when  one  may  have       206 

F 

FALSE  REPRESENTATION. 

(see  MISREPRESENTATION). 

FIDUCIARY  RELATIONSHIP. 

as  basis  of  fraud      101-103 

various  classes  of  persons  holding       101-103 

release  obtained  by  one  in,  may  be  disregarded       ...       110 
as  a  basis  for  accounting 202 

FIRE. 

destroying  buildings  agreed  to  be  sold       83,84 

no  defense  to  building  contract       88 

no  defense  to  agreement  to  pay  rent      88 

FORECLOSURE. 

of  foreign  mortgage 35,  36 

redemption  from  fraudulent 112 

FOREIGN  LAW. 

mistake  of,  as  basis  of  relief 92 

FORFEITURES. 

relief  against       7,  87 

FRAUD. 

(see     MISREPRESENTATION;     ESTOPPEL;     FRAUDU- 
LENT CONVEYANCE;  FRAUDULENT  PREFERENCE) 
between  husband  and  wife 13,  14,  15 


INDEX  231 


between  partners 17 

of  plaintiff  as  ground  for  refusal  of  relief       48 

previously  attempted  by  plaintiff,  no  defense       ....  49 

right  to  litigate  for,  not  assignable      56 

contrasted  with  mistake 92 

jurisdiction  in  England  and  America      98  et  seq. 

relief  from  results  of  constructive 100  et  seq. 

apparent  from  nature  of  bargain 100 

illegal  contracts,  as         101 

from  contracts  affecting  public  officers 101 

presumed  from  circumstances  of  parties         101 

by  conveyance  or  transfer  in  fraud  of  creditors        .    103  et  seq. 

by  conveyance  in  fraud  of  marital  rights 103 

by  grantee  as  element  in  fraudulent  conveyance      .    .    .  106 

certain  sales  of  merchandise  in  bulk,  as      106,  211 

not  apparent  in  prima  facie  case,  no  bar  to  plaintiff's 

recovery   . 108 

as  a  legal  or  equitable  defense      110 

right  to  sue  for,  not  assignable         112 

right  to  set  aside  instruments  for,  assignable 112 

claim  of,  must  be  alleged  and  proven 112 

party  guilty  of,  may  not  have  relief       112 

in  procuring  trust  property,  relieved  after  fraudulent 

actor's  death        112 

in  absence  of,  contract  will  not  be  reformed  to  make  less 

harsh         113 

antecedent  to  contract  may  be  merged  in  it      113 

in  substituting  agreement,  as  ground  for  enforcing  oral 

contract       147 

as  defense  to  specific  performance 155,  156 

as  basis  of  equitable  interference  with  suits  and  judg- 
ments         160 

on  the  public  as  a  basis  of  trademark  suits       185 

FRAUDULENT  CONVEYANCE. 

void  as  against  creditors       103 

void,  if  in  violation  of  martial  rights       103 

grantee's  fraud  as  element  in       106 

certain  sales  of  merchandise  in  bulk,  as 106 

extent  of  knowledge  of,  by  grantee 106 

execution  of  oral  trust,  not  a       107 

FRAUDULENT  PREFERENCE. 

to  certain  creditors,  a  matter  of  statute 104,  108 

FUND. 

ordering  payment  from 11 

conversion  where  proceeds  mixed  in       78 

marshaling  of      212,  213 


232  INDEX 

G 
GIFTS. 

(see  DONATIONS  CAUSA  MORTIS). 

between  husband  and  wife       15 

validity  of  as  assignments 52,  53 

oral,  of  incorporeal  personalty 53 

of  bank  books,  notes,  policies,  etc 53 

donor  may  have  reformation  of  instrument  of  gift       .    .  95 

doctrine  of  part  performance  applied  to 147 

GOOD  WILL. 

agreement  implied  from  sale  of 130-133 

history  of  Massachusetts  decisions  on 131 

GUARDIAN. 

certain  purchases  and  sales  by,  fraudulent 101 

H 

HEIRLOOMS. 

specific  redelivery  of      119 

HEIRS. 

deeds  reformed,  to  insert  the  word      90 

rights  in  decedent's  agreements  to  buy  or  sell       .    .    .    .  81,  82 

HISTORY. 

of  law  courts  in  England       1,  2,  3 

of  legal  actions 3 

of  early  chancery  jurisdiction       3,  4 

of  equity  jurisdiction  in  Massachusetts          4,  5,  6 

of  rise  of  specific  performance      116 

of  Massachusetts  decisions  on  sale  of  good  will    ....  131 

HUSBAND  AND  WIFE. 

suits  between,  at  common  law 12 

suits  between,  in  equity 13 

to  set  aside  ante-nuptial  contracts      13 

to  protect  equitable  interests       13 

to  recover  property 13,  14  15 

none  for  money  loaned      14 

specific  performance  between 14 

to  obtain  equity  to  settlement 15 

dower  and  curtesy  as  affected  by  equitable  con- 
version       82,  83 

when  creditors  of  each  other 104 

conveyances  between,  whether  fraudulent 107 

certain  trusts  between       108 


INDEX  233 

I 

ILLEGALITY. 

of  contracts,  as  fraud 101 

IMPROVEMENTS. 

as  elements  of  part  performance      146 

effect  on,  of  failure  to  complete  contract       150 

INADEQUACY  OF  CONSIDERATION. 

as  an  element  of  constructive  fraud 100 

INADEQUACY  OF  LEGAL  REMEDY. 

(see  ADEQUATE  REMEDY  AT  LAW). 

as  basis  of  equitable  relief 24  el  seq. 

where  subject  matter  of  contract  is  land,  etc 27 

in  some  cases  immaterial      28 

where  damages  at  law  inadequate 120 

because  of  vendee's  insolvency        121 

where  debtor  has  promised  security 121 

as  basis  of  remedy  in  accounting 204 

for  obtaining  contribution  between  co-sureties     ....  207 

INDEMNITY. 

bond  of,  in  suit  on  lost  instruments 86,  87 

bond  of,  in  patent  suits 182 

where  one  pays  debt  for  which  another  is  liable  .  206,  209,  211 

212 

INFANTS. 

decrees  against,  as  defendants      37,  38 

not  chargeable  with  laches        51 

possession  of  money  for,  does  not  terminate  conversion  79 

constructive  fraud  of  guardian  of 101 

INFRINGEMENT. 

of  patents         181 

of  copyrights       183 

of  author's  rights  in  unpublished  plays,  manuscripts, 

photographs,  letters,  etc 184 

of  right  of  privacy      184 

of  rights  in  letters      184 

of  trade  marks 184-187 

of  trade  names,  unfair  competition 188-189 

INJUNCTION. 

against  suits  at  law 8 

against  tort  in  another  jurisdiction 35 

against  waste  of  agreed  vendor  or  vendee      83 

against  husband's  claim  of  curtesy      83 

against  enforcement  of  obligations  obtained  by  fraud     .  Ill 

to  enforce  negative  contracts       126 


234  INDEX 


to  enforce  agreements  implied  from  sale  of  good  will    .        130 

as  the  method  of  enforcing  restrictions      136 

generally      158-201 

kinds  of  and  principal  uses  for 158,  159 

to  restrain  suits  and  judgments       .......     35,  160-162 

to  restrain  acts  of  public  or  corporation  officials       .    .    162-164 

to  restrain  waste 165-168 

to  restrain  trespass 168-173 

to  restrain  disturbance  of  easement 172 

to  restrain  nuisance 174-181 

to  restrain  infringement  of  patents,  copyrights,  trade- 
marks, and  unfair  competition 181-191 

to  restrain  interference  with  business  or  contract     .    .    191-201 
in  labor  disputes 191-201 

IN  PARI  DELICTO. 

client  and  attorney  not,  in  champertous  contract    ...         48 

IN  PERSONAM. 

decrees,  render  equity  flexible      25,  26 

equity  acts      34  el  seq. 

INSANE  PERSONS. 

decrees  against,  as  defendants      37,  38 

not  chargeable  with  laches        51 

possession  of  money  for,  does  not  terminate  conversion  79 

contract  with,  voidable  as  fraudulent 101 

INSOLVENCY. 

(see  BANKRUPTCY). 

INSURANCE. 
(see  FIRE). 

assignment  of  policy  of      .    . 53,  55,  60 

estoppel  from  another's  possession  of  policy      74 

waivers  arising  in  policies  of 75,  76 

conversion  of  proceeds  of  policies  of       79 

recovered  by  agreed  vendor,  for  vendee 84 

as  subject  of  fraudulent  conveyance       104 

INTERFERENCE  WITH  BUSINESS  OR  CONTRACT. 

a  tort  at  common  law 191 

will  be  enjoined  in  equity,  when      191-201 

INTERPLEADER. 

actions  of 20 

object  of       21 

plaintiff  must  be  disinterested      .    . 21 

claims  in,  must  not  be  distinct  in  origin        21 

effect  of  judgment  already  rendered       22 

first  decree  in      22 


INDEX  235 


final  decree  in      22 

statutory  interpleader       22 

bill  "in  the  nature  of"       23 

to  determine  validity  of  equitable  assignment      ....  57 

J 
JOINT  OWNERS. 

(See  CO-OWNERS ;  CO-TENANTS). 

in  suits  at  law,  or  in  equity      20 

JUDGMENT. 

foreign,  various  incidents  of 35,  36,  37 

as  estoppel 65,  66,  67 

merger  of  contract  debt,  in       67 

upon  constructive  service,  good  in  -personam 65 

in  rem,  effect  of       66 

for  one  of  several  parties       67 

relief  against  improper       87 

restraint  of  by  court  in  equity 160-162 

equitable  set-off  of     160 

valid  though  in  violation  of  injunction       162 

JURISDICTION. 

(see  EQUITY  JURISDICTION). 

JURY  IN   EQUITY. 

constitutional  rights       32 

waiver  of      32 

must  be  claimed  when 32 

submission  of  issues,  sufficient     33 

statutory  provision  for      33 

effect  of  verdict       33 

K 
KING. 

early  courts  followed      1 

originally  heard  petitions  for  grace      3 

L 
LABELS. 

(see  TRADE  NAMES). 

LABOR, 

enforcement  of  affirmative  contracts  requiring      .    .    .    123-125 
enforcement  of  negative  contracts  requiring      ....    126-128 

constitutional  right  to  freedom  of       191 

interference  with  right  to      191-201 

LABOR  UNIONS. 

injunctions  in  disputes  with  and  between 192  et  seq. 

how  sued      201 


236  INDEX 


LACHES. 

what  constitutes 49-51 

a  form  of  estoppel      49 

analogy  of  statutes  of  limitations 49 

dependent  on  facts 49,50,51 

when  matter  of  law 50 

requires  knowledge  of  facts      51 

certain  suits  not  barred  by 51 

no  defense,  where  plaintiff  seeks  relief  from  a  void 

instrument 51 

as  defense  to  bill  to  reform  for  mistake      96 

as  a  defense  to  restrictions       141 

as  a  defense  in  nuisance 177,  179 

LAND. 

(See  TITLE;  TRESPASS;  FRAUDLENT  CONVEYANCE). 
inadequacy  of  legal  relief  in  contracts  relative  to  .  .  .  27 
illegal  taking  of,  not  ground  for  equitable  relief       ...         27 

possession  of,  as  constructive  notice  of  title      63 

considered  as  personalty,  under  conversion       76 

conversion  in  contracts  regarding 78-84 

sold  under  order  or  court,  surplus  treated  as  realty     .    .         78 

proceeds  from  taking  of,  by  eminent  domain 79 

where  conversion  by  will,  there  may  be  election  to  recon- 
vert          78 

valid  contract  to  convey  usually  enforced 117 

enforcement  of  restrictions  on      135-143 

part  performance  of  agreement  to  sell 143-147 

partial  performance  of  agreement  to  sell 147-148 

time  in  contracts  to  sell        148-151 

marketable  title  in  sales  of       151-152 

lack  of  mutuality  in  contracts  to  sell      152-154 

inadequacy  of  consideration  in  agreement  to  sell  .  .  .  154 
should  be  identified  in  bill  for  specific  performance     .    .       157 

waste 165  et  seq 

damage  to  reputation  of,  not  waste 168 

projection  of  structure  over     170 

LANDLORD  AND  TENANT. 

(see  LEASE ;  TENANTS). 

LAW. 

(see  COURTS  OF  COMMON  LAW). 

absence  of  plain,  adequate  and  complete  remedy  at     124  et  seq 

effect  of  equity  on  rules  of 7 

equity  follows  the  law       40,  41 

LEASE. 

covenant  not  to  assign  in,  effect  of 56 

difference  between  liability  of  lessee  and  his  assignee  60 

doctrine  of  part  performance  applied  to 147 


INDEX  237 


LEGACY. 

(see  WILLS;  ADMINISTRATOR  AND  EXECUTOR). 

equitable  replevin  of  specific 119 

specific,  defined 207 

contribution  between  persons  entitled  to       207,  208 

LETTERS. 

injunction  against  publication  of 184 

LIBEL  AND  SLANDER. 

will  not  be  enjoined       158 

LIENS,  EQUITABLE. 

the  maxims  that  support  them 45 

LIGHT  AND  AIR. 

disturbance  of  easement  of       173 

LIS   PENDENS. 

referred  to  the  doctrine  of  notice 64 

LOST  INSTRUMENTS. 

legal  rules  permitting  suit  on       7,  86 

recovery  on,  in  equity       86 

indemnity  bond  in  suit  on 86 

defenses  to  relief  on       88 

M 
MACHINERY. 

noise  and  jar  or,  as  a  nuisance 174,  181 

invention  of  by  employees 190 

MANDAMUS. 

a  remedy  at  law      10 

as  a  remedy  for  certain  official  acts        162,  163 

MANUSCRIPTS. 

injunctions  against  publication  of       184 

MARTIAL   RIGHTS. 

conveyances  in  fraud  of        103 

MARKETABLE  TITLE. 
(see  TITLE), 
generally      151-152 

MARRIAGE. 

effect  of,  on  contracts  to  convey 82 

contracts  in  restraint  of,  fraudulent 101 

as  a  consideration  in  conveyances       107 


238  INDEX 


MARRIAGE  SETTLEMENTS. 

protected  in  equity        13,  14,  15,  107 

MARRIED  WOMEN. 

(See  HUSBAND  AND  WIFE;  MARRIAGE;  MARITAL 
RIGHTS). 

rights  against  husband      12-15 

rights  on  note  of  husband 12,  13 

equitable  interest  protected      13 

MARSHALING. 

as  between  funds 212,  213 

MAXIMS. 

equity  will  not  suffer  a  wrong  to  be  without  a  remedy  39 

equity  follows  the  law       40 

where  the  equities  are  equal,  the  law  will  prevail     ...  43 
where  interests  are  purely  equitable  and  in  other  res- 
pects equal,  priority  in  time  gives  the  better  equity  44 
equity  treats  that  as  done  which  ought  to  be  done      .    .  45 

he  who  seeks  equity  must  do  equity 45 

he  who  comes  into  equity  must  come  with  clean  hands  46 

equity  aids  the  vigilant 49 

MERGER. 

of  a  debt  in  a  judgment 67 

of  antecedent  fraud,  in  contract      113 

MINORS. 

(see  INFANTS). 

MISREPRESENTATION. 

(see  FRAUD;  ESTOPPEL). 

as  basis  of  estoppel        70-73 

as  fraud  in  equity       99  et  seq. 

as  a  defense  to  specific  performance       155-156 

as  a  bar  to  relief  in  trademark  suits       187 

as  an  element  in  trade  name  protection 188 

MISTAKE. 

as  a  ground  for  relief  in  equity 88 

of  law 89,  90 

mutual,  of  law,  causing  unjust  enrichment 89 

contrasted  with  accident 89 

in  deeds  and  titles      90,  92 

of  law  and  fact  in  payment  of  money 90 

mutual,  of  fact    .    . 91-93 

how  and  when  remedied       93,  96-98 

in  written  instruments  inter  vivos 94-96 

in  deed  of  gift 95 

in  wills,  not  relieved      95 

contrasted  with  fraud 95 

evidence  required  to  remedy 97 

of  counsel  no  ground  for  equitable  relief 160 


INDEX  239 


MONEY. 

paid  under  mistake  of  law  not  recoverable 90 

paid  under  mistake  of  fact  sometimes  recoverable       .    .  90 

equitable  replevin  of 119 

loaned  on  agreement  to  give  mortgage 121 

equitable  restraint  of  illegal  appropriation  of 164 

contract  action,  for  money  trust      202 

rules  for  application  of,  where  several  debts 205 

MONOPOLY. 

(see  COMPETITION). 

criminal  statutes  prohibiting 126,  128 

civil  statutes  prohibiting 128 

Sherman  Anti-trust  Act    .    .    . 128 

enforcement  of  contracts  affecting      128 

holder  of  patent  has  a  legitimate 129 

MORTGAGES. 

relief  from,  in  Massachusetts       5 

equity  jurisdiction  over  foreign       .    . 36 

payment   of   additional   sums  as   requirement  for  re- 
demption        45 

rights  of  assignee 60 

agreed  vendor  likened  to  mortgagee 80 

forfeitures  in 87 

discharged  by  mistake,  re-established  in  equity       ...  98 

as  subject  of  fraudulent  conveyance 104 

redemption  from  fraudulent  foreclosure  of        112 

holders  of,  may  enforce  restrictions        137 

waste  as  between  parties  to      167 

subrogation  of  one  who  pays 211 

MULTIPLICITY  OF  SUITS. 

avoidance  of 25,  30,  163,  176 

MUTUALITY. 

lack  of,  as  a  defense  to  certain  bilateral  contracts       .    152-153 

N 

NE  EXEAT  REGNO,  .WRIT  OF. 

to  prevent  defendant's  leaving,  without  bond     38 

relief  from  mistake  as  to  bond  in        90 

NEGATIVE  CONTRACTS. 

enforcement  of 126  et  seq. 

involving  personal  services       126-128 

limiting  use  of  property        128-129 

against  competing      129-133 


240  INDEX 


NEGLIGENCE. 

as  a  bar  to  relief  from  accident 86 

as  a  bar  to  relief  from  mistake 93 

NEGOTIABLE  INSTRUMENTS, 
(see  PROMISSORY  NOTES). 

NOISE. 

injunction  to  restrain 174 

NOTICE. 

effect  of    . 61 

under  recording  acts      61,  63,  64 

under  Mass.  Land  Court  Act 61 

estoppel  from      61 

as  affecting  personalty 62 

actual       62,  64 

constructive     . 62,  63 

presumed  from  evidence       63 

recitals  in  deeds,  as 63 

lis  pendens       64 

acquired  after  payment,  but  before  deed       64 

immaterial,  where  grantor's  title  is  good  by  estoppel      .  74 

NUISANCE. 

jurisdiction  to  restrain       174-181 

distinguished  from  other  torts      174 

examples  of  private       174,  175 

actions  at  law  for       175 

examples  of  public      176 

lessor's  right  to  enjoin       177 

limitation  of  right  to  sue  for 177 

occasional,  not  enjoined 178 

relative  hardship  of  parties       178 

damages  in  actions  for 179,  181 

prescriptive  right  to  maintain      179 

defenses  to 179-181 

legislature  may  create,  by  statute       180 

licenses  as  affecting 180 

decrees  in  bills  for      181 

strike  may  constitute  public 200 

O 
OFFICFRS 

(see  CORPORATION;  PUBLIC  OFFICERS). 

OPTIONS. 

on  property,  not  naming  price,  not  enforcible      ....      123 
how  affected  by  doctrine  of  mutuality       153 

ORDERS. 

as  assignments 59 


INDEX  241 

P 

PAROL  CONTRACT. 

(see  STATUTE  OF  FRAUDS). 

PAROL  EVIDENCE. 

competent  to  prove  mistake  in  instrument 97 

PART  PERFORMANCE. 

(see  STATUTE  OF  FRAUDS). 

as  basis  for  exception  to  Statute  of  Frauds       ....    143-147 

ground  for  enforcement 144 

acts  of 144-146 

doctrine  repudiated  in  certain  states      144 

doctrine  applies  to  easements  and  leases 147 

when  doctrine  is  applied  to  gifts      147 

PARTIAL  PERFORMANCE,  WITH  COMPENSATION. 

when  vendor  and  vendee  may  have 147-148 

distinguished  from  part  performance      147 

PARTIES. 

equitable  12  et  seq 

suits  between  those  having  co-ownership 19,  20 

husband  and  wife       12  et  seq 

partners        16  el  seq 

having  distinct  rights         20 

in  interpleader        20 

death  of,  as  affecting  conversion      81,  82 

where  defrauded  person  has  died 102 

to  conveyance,  cannot  avoid  because  fraudulent  as  to 

creditors 108 

guilty  of  fraud  may  not  have  relief 112 

in  labor  disputes 201 

PARTITION. 

of  real  estate  in  equity 19 

of  chattels  in  equity      19,  20 

PARTNERS. 

suits  between  partners       16  et  seq 

at  common  law       16 

in  equity 17 

to  establish  and  regulate  partnership 17 

to  dissolve  partnership      17,  18 

accounting  in      18,  19 

contribution  in 19 

whether  all  but  plaintiff  should  be  defendants         .         19 
effect  of  judgment  for  one  of  three,  on  note      ...         67 

specific    performance   between,    of   agreement   to    sell 
business 120 


242  INDEX 

vendor  of  good  will  may  not  compete  as 132 

surviving  partner,  certain  rights  in  competition       .    .  132,  133 

PARTNERSHIPS. 

(see  PARTNERS;  BUSINESS). 

suits  between,  having  same  members 16 

effect  of  sale  of  good  will  of         132,  133 

PATENTS. 

assignability  of  applications  for       55 

mutilation  of  assignments  of 88 

holder  of;  may  enforce  monopoly 129 

suits  for  infringement  of       181,  182 

accounting  in  patent  suits        ,t 190-191 

no  restraint,  as  unfair  competition,  after  expiration  of  188 

PENALTIES. 

relief  from        87 

PERSONAL  PROPERTY. 

(see  CHATTEL  MORTGAGES;  ASSETS;  CHOSES  IN  AC- 
TION; FUND;  SPECIFIC  DELIVERY  OF  CHATTELS). 

suits  between  co-owners  of       19,  20 

absence  of  notice,  as  affecting  title  to 62 

no  estoppel  from  entrusting  another  with  .....         74 

considered  as  real  estate,  under  doctrine  of  equitable 

conversion        _ 76 

contract  for  sale  of,  enforced  if  property  is  unique       .  118,  120 

enforcement  of  covenants  restricting  use  of       137 

trespass  to,  restrained       173 

PERSONAL  SERVICE. 

ordinarily  required  for  jurisdiction      34 

service  on  attorney  may  be      36 

PHOTOGRAPHS. 

injunction  against  publication  of 184 

PHYSICIAN. 

certain  contracts  with  patient,  voidable 102 

PICKETING. 

(see  BOYCOTTS  AND  STRIKES;  INTERFERENCE  WITH 

BUSINESS  OR  CONTRACT), 
as  an  element  in  industrial  disputes        199,  200 

PLAYS. 

injunction  against  publication  of 184 

POLLUTION. 

of  air  by  smoke  or  odor        174,  179 

of  water       175,  177,  178,  179 


INDEX  243 


POWERS. 

relief  from  defective  execution  of        87 

PREFERENCE. 

(see  FRAUDULENT  PREFERENCE). 

PRESCRIPTION. 

may  affect  defendant's  right  to  set  up  clean  hands  maxim        49 
as  a  defense  to  bill  for  nuisance  or  trespass 177,  179 

PRIORITIES. 

maxims  respecting  42-44 

between  successive  assignees 59-60 

under  recording  acts      61,  63,  64 

PRIVACY. 

injunction  to  protect  the  right  of 184 

PRIVITY  OF  ESTATE. 

necessary  in  order  that  covenants  shall  run  with  land  135 

PROBATE   COURT. 

equity  jurisdiction  in,  in  Massachusetts 6 

PROCEDURE. 

three  classes  of  modern 4 

the  jury  in  equity       32,  33 

contempt      34 

equity  follows  legal 41 

PROFERT. 

formerly  required,  of  sealed  instruments        7,  86 

PROFITS. 

(see  DAMAGES). 

when  allowed,  of  on  redemption  from  foreclosure        .    .       112 

allowed  in  decrees  for  copyright  infringement 183 

when  allowed  in  infringement  suits 190-191 

distinguished  from  damages,  in  accounting       204 

PROMISSORY  NOTES. 

(see    WRITTEN    INSTRUMENTS    and    LOST    INSTRU- 
MENTS). 

between  husband  and  wife       12,  13 

between  partners 16,  17 

assignments  of         52,  53  ,54,  60 

estoppel  from  judgment  on,  for  partner 67 

PROMOTERS. 

certain  contracts  of,  with  corporation,  voidable       .    .    .       102 

PUBLIC  NUISANCE, 
(see  NUISANCE). 


244  INDEX 


PUBLIC  OFFICERS. 

fraudulent  contracts  affecting      101 

quo  warranto  and  mandamus  against         162-163 

restraint  of  illegal  acts  of 162-164 

license  from,  as  a  defense  to  bill  for  nuisance  .    .    .       180 

PUBLIC  POLICY. 

ground  for  holding  certain  transactions  fraudulent      .    .       109 
determines  how  far  contracts  bind  assigns        ....  139,  140 

Q 
QUO  WARRANTO. 

a  remedy  at  law     10 

as  a  remedy  for  certain  official  acts        162 

R 
REAL  ESTATE, 
(see  LAND). 

RECEIVERS. 

equity  courts  may  appoint       18 

RECITALS. 

in  deeds,  as  notice      63,  64 

RECONVERSION. 

occurs  when        79 

RECORDING  ACTS. 

effect  of 61-64 

REFORMATION. 

of  written  agreementSj  for  mistake      96 

of  deeds  of  gift,  for  mistake      95 

of  wills,  not  granted  in  equity      . 95 

of  contract,  after  fraudulent  alteration       110 

RELEASE. 

given  to  one  in  fiduciary  relation,  may  be  disregarded    .       110 

REMEDIES   IN  EQUITY. 

(see  EQUITY  JURISDICTION;  DECREES). 

REPARATION  OF  TORTS, 
(see  INJUNCTIONS). 

how  jurisidction  may  arise 119 

by  injunction      165-201 

REPLICATION. 

jury  may  be  claimed  in  Massachusetts  within  ten  days 
after 32 


INDEX  245 

REPRESENTATIONS. 

(see  MISREPRESENTATION). 

RESCISSION. 

(See  CANCELLATION). 

of  contract  requires  that  defendant  be  put  in  statu  quo  46 

of  contract  obtained  by  fraud      100 

of  contract,  with  action  of  tort  for  deceit      109 

of  contract,  with  equitable  relief 110 

of  contract,  only  for  fraud  or  acts  going  to  essence  of 

contract       113 

effect  of,  is  to  restore  defendant's  earlier  rights            .    .  113 

RES  JUDICATA. 
(see  ESTOPPEL). 

or  estoppel  by  record 65-67 

follows  judgment,  not  verdict      65 

dismissal  of  bill  is  not 66 

from  judgment  in  rem       66 

none,  as  to  contract,  from  refusal  to  order  specific  per- 
formance             116 

RESTRAINT  OF  TRADE. 

(see  MONOPOLY;  COMPETITION). 

RESTRICTIONS. 

certain  obligations  of  grantee  may  be 135 

definition  of 135 

how  created  and  enforced 135-143 

may  apply  to  personalty  or  land 136,  137 

general  scheme  to  benefit  other  land  necessary      .    .      137-140 

resulting  from  statute        137,  138 

creator  of,  may  enforce 138 

may  not  be  for  benefit  of  stranger      139 

not  to  be  implied 139 

requiring  active  duties       140 

burden  and  benefit  of,  pass  to  assigns 139-140 

duration  of      140,  141 

when  not  enforcible       141 

money  damages  for  violation  of       141,  142 

land  freed  from  by  Land  Court       142 

no  defense  to,  that  neighborhood  will  change 142 

effect  of  dividing  lot  subject  to 142 

Statute  of  Frauds  applies  to 142 

created  by  estoppel 142 

result  of  non-user  or  abandonment 142,  143 

effect  of  plaintiff's  technical  violation 143 

violator's  expenditures  no  defense 143 

S 
SALE. 

(see  LAND;    PERSONAL  PROPERTY;    ASSIGNMENTS), 
in  bulk,  may  be  fraudulent       106,  211 


246  INDEX 


SEAL. 

effect  of  in  equity 7 

omission  by  mistake,  corrected 94 

SEALED  INSTRUMENTS. 

(see  LOST  INSTRUMENTS;    DEEDS;  CONTRACTS; 
WRITTEN    INSTRUMENTS). 

payment  of,  how  pleaded      7 

necessity  for  profert  of      86 

SECURITIES. 

specific  redelivery  of      119 

sureties'  rights  in 208 

rights  in,  upon  subrogation       209,  210 

SEPARATE  ESTATE  OF  WIFE. 

basis  of  suits  in  equity      13,  15 

SPECIFIC  DELIVERY  OF  CHATTELS. 

as  a  form  of  relief  from  fraud      Ill 

as  reparation  of  tort ".       119 

SPECIFIC  PERFORMANCE. 

between  husband  and  wife       14 

may  be  only  adequate  remedy  in  land  contracts,  etc.  27 

bill  for,  where  decree  impossible,  retained  for  damages  31 

plaintiff  in,  must  perform  his  part       45 

generally      115  et  seq 

definition  and  nature  of        116 

not  an  absolute  right,  but  rests  in  discretion      .    .     .    .       116 

none  where  vendor  has  conveyed 118 

of  contracts  concerning  chattels      119 

of  agreement  to  compromise  as  will 119 

of  contracts  to  sell  stocks  and  bonds      121 

of  agreements  to  arbitrate 121-123 

of  agreements  to  give  options      123 

of  award  after  arbitration 123 

of  contracts  involving  continuous  labor 123-125 

of  negative  contracts 126  et  seq 

of  contracts  regarding  trade  secrets 127 

of  contracts  in  restraint  of  trade 128-129 

of  agreements  not  to  compete 129  et  seq. 

of  contracts  arising  from  sale  of  good  will     ....     129  et  seq 
of  contracts  for  and  against  third  persons     ....     133  et  seq 

of  restrictions      136 

Statute  of  Frauds  —  part  performance      ......    143-147 

of  oral  contract,  where  fictitious  agreement  substituted         I47 

partial  performance,  with  compensation 147-l4g 

where  time  is  of  the  essence  of  the  contract      l4g 

only  where  title  is  marketable 151-152 


INDEX  247 


inadequacy  of  consideration  as  affecting 154 

sundry  defenses  to 155 

alternative  relief,  with  suit  at  law 155 

STAKEHOLDER. 

may  bring  interpleader          20,  21 

when  sued  may  summon  claimant 22 

STATUTE  OF  FRAUDS. 

no  bar  to  certain  parol  transfers  under  conversion       .    .  80 

as  bar  to  certain  corrections  in  instruments       97 

does  not  apply  where  oral  trust  has  been  executed      .    .  107 

has  no  application  to  constructive  frauds      113 

no  defense  to  fraudulent  grantee  from  oral  trustee       .    113-114 

as  bar  to  suit  for  purchase  price  of  executed  contract  118 

applies  to  restrictions        142 

distinguished  from  certain  other  statutes       143 

effect  of  part  performance  on 143-147 

various  requirements  of 143 

agreement  covering  realty  and  personalty  is  within     .    .  144 
no  bar  to  enforcement  of  oral  contract  following  certain 

frauds 147 

as  affecting  necessity  for  mutuality        153 

as  a  defense  to  specific  performance 156 

value  of  land  recovered,  when  agreement  within      .    .    .  157 

application  of  payment  to  debt  barred  by     ......  205 

subrogation  by  surety  who  does  not  raise  defense  against 

creditor         212 

STATUTE  OF  LIMITATIONS. 

as  a  guide  for  determining  laches 49 

application  of  payment  to  debt  barred  by 205 

subrogation  by  surety  who  does  not  raise  defense  against 

creditor         212 

STATUTES. 

English  Judicature  Act      2 

Statute  of  Westminister 3 

defining  equirtable  procedure 4 

conferring  equity  jurisdiction  in  Massachusetts        ...  5,  6 

permitting  equitable  defenses       8,  160 

defining  rights  of  married  women  in  Massachusetts     12,  13,  15 

permitting  partition  of  chattels        20 

"statutory  interpleader"  under        22,  23 

limiting  equity  jurisdiction 26 

removing  money  limit  on  equity  jurisdiction     .....  31 

affording  new  form  of  relief,  ground  for  jury  trial        .    .  31 

giving  right  to  jury  trial        33 

vesting  title  in  new  trustee 37 


248  INDEX 


vesting  title  without  conveyance 36,  37 

appointing  a  trustee  to  complete  sale 37 

permitting  suit  by  purchaser  of  stock  on  a  margin      .    .         46 

giving  assignee  right  to  sue  at  law      54 

for  recording  deeds         . 61,  62,  63,  64 

requiring  executor  or  administrator  specifically  to  perform        81 

relieving  from  fraudulent  conveyances       103  et  seq 

setting  aside  fraudulent  preferences 104,  108 

protecting  insurance  payable  to  wife 104 

excluding  from  valid  gifts  to  wife,  those  in  fraud  of 

creditors 104 

broadening  power  of  executors,  etc.  to  sue  for  fraudulent 

conveyance      105 

making  certain  sales  in  bulk,  fraudulent 106,211 

allowing  appointment  of  master  to  perform  decree      .    .       116 

allowing  equitable  replevin 119 

permitting  arbitration  of  controversies       122 

criminal  against  monopolies 126,  128 

civil  against  monopolies 128 

prohibiting  injunctions  in  certain  labor  disputes      .    .  126,195 

Sherman  Anti-trust  Act 128,  198 

limiting  right  to  use  another's  name  in  business     .    .    .       133 

may  create  restrictions      136 

allowing  purchasers  from  state  to  enforce  restrictions    137,  138 

limiting  enforcement  of  restrictions        140 

permitting  court  to  free  land  from  restrictions     ....       142 

that  resemble  the  Statute  of  Frauds 143 

federal,  on  enjoining  suits 162 

to  restrain  illegal  appropriations      164 

concerning  waste 165 

preventing  easement  of  light  and  air  by  prescription  173 

concerning  abatement  of  nuisances 175 

creating  nuisances      176,  180 

concerning  injunctions  in  labor  disputes 192  et  seq. 

making   non-membership   in   union   a   prerequisite   to 

employment  a  crime      192 

allowing  peaceful  persuasion  of  laborers         199,  200 

governing  accounting         203 

STOCKHOLDERS. 

(See  CORPORATIONS). 

specific  performance  of  agreements  of,  to  sell       ....       121 

may  restrain  acts  of  officers,  how 162-164 

STRIKES  AND  BOYCOTTS. 

as  ground  for  equitable  relief       191-201 

SUBROGATION. 

one  may  have,  though  guilty  of  constructive  fraud  113 

when  one  may  have       209-212 

at  law  and  in  equity      209 

extent  of  recovery      211,  212 


INDEX  249 


SUITS. 

(see  EQUITY  JURISDICTION;  ACTIONS). 

SURETIES 

contribution  between 207-209 

subrogation  of 209-212 

T 
TAX. 

non-payment  of,  as  waste 167 

subrogation  of  one  paying,  to  collector's  lien 211 

TENANTS. 

(See  LEASE). 

waste  between  landlord  and 165-166 

when  landlord  may  not  enjoin  business  of 180 

TENDER. 

not  always  a  prerequisite  to  specific  performance        .    .         45 

when  necessary  at  law  and  in  equity      149,  151 

lack  of,  as  a  defense 156 

TIMBER. 

cutting  of ,  as  waste 166 

TIME  OF  ESSENCE  OF  CONTRACT. 

for  performance  usually  formal  rather  than  essential      .       148 

different  rule  at  law       148 

necessity  for  tender       149,  151 

how  made  in  equity       149,  150 

effect  of 150 

TITLE. 

(See' LAND;  DEEDS;  FRAUDULENT  CONVEYANCE). 

notice  as  affecting      61,  62,  63,  64 

by  estoppel      68,  69 

passes  to  whom       74 

mistakes  in,  sometimes  remedied         90,  92 

fraudulent  statements  as  to      99 

partial  performance  where  defects  in      147 

must  be  marketable,  for  specific  performance       ....       151 

defective  on  records,  may  be  marketable 151 

when  court  will  pass  on  marketability  of 151 

must  be  marketable  at  what  time       151,  152 

cloud  on,  as  ground  for  equitable  action 163,  171 

should  first  be  settled  at  law 171 

TORT. 

(See  INJUNCTIONS). 

early  actions  of       3 

certain,  not  assignable 55,  56 

remedy  at  law  for  deceit       109 

reparation  and  prevention  of       165-201 


250  INDEX 


TRADE   MARKS  AND  NAMES. 

injunctions  against  violation  of  marks       184-187 

registration  of  marks 185 

whether  or  not  a  trademark  is  property 185 

assignability  of       187 

injunctions  against  violation  of  names       188-189 

accounting  in  trademark  suits      190-191 

TRADE  SECRETS. 

duty  of  employee  not  to  reveal 127 

innocent  purchaser  of,  may  use 127 

injunctions  against  violation  of 189-190 

accounting  for  violation  of 190-191 

TRESPASS. 

definition  of 168 

when  equity  will  restrain      168-173 

by  projection  of  structure 170 

by  disturbing  private  easements      172 

to  personalty 173 

confusion  with  nuisance 174 

TRIAL  BY  JURY 

right  to,  in  equity      32,  33 

TRUSTEE. 

judgment  against,  at  law,  no  bar  to  certain  equity  suits  67 

agreed  vendor  likened  to       80 

purchases  or  sales  of  trust  property  by,  fraudulent     .    .  101 

in  bankruptcy  may  set  aside  fraudulent  conveyance       .  105 

under  oral  trust,  may  convey,  though  insolvent  .    .    .    .  107 
under  oral  trust,  may  set  up  Statute  of  Frauds;  his 

grantee  may  not 114 

TRUSTS. 

equitable  subject  matter       9,  10 

oral,  may  be  carried  out,  though  trustee  insolvent       .    .  107 

between  husband  and  wife       108 

accounting,  between  funds 202 

accounting,  following  a  fund 202 

U 
UNDISCLOSED  PROFITS. 

of  promoter,  receivable  by  corporation       103 

UNDUE  INFLUENCE. 

causing  mistake,  relief  from      90 

as  basis  of  relief  for  fraud 101 

not  a  necessary  element  in  constructive  fraud      ....  102 

specific  redelivery  of  property  obtained  by       Ill 


INDEX  251 

UNFAIR  COMPETITION. 

injunctions  to  prevent       . 188-190 

accounting  on  suits  to  restrain         190-191 

UNILATERAL  MISTAKES. 

not  ordinarily  relieved  from 89-91,  93,  95 

of  law  causing  unjust  enrichment        89,  90 

UNJUST  ENRICHMENT. 

as  a  basis  of  equitable  relief 89,  90 

between  trust  funds       210 

V 
VERDICT. 

of  jury  in  equity 33 

certain  tort  claims  assignable  only  after        55 

VOLUNTEERS. 

heirs  and  personal  representatives  are 96 

W 
WAIVER. 

of  defense  does  not  always  give  jurisdiction      28,  29 

of  defense  may  in  certain  cases  give  jurisdiction      ...         30 

of  right  to  jury  trial       32 

as  a  form  of  estoppel 75,  76 

of  certain  requisites  in  insurance  policies 76 

failure  to  make  tender  may  be,  of  certain  rights      ...       151 

WASTE. 

as  between  agreed  vendor  and  vendee        83 

at  common  law  and  in  equity      165-168 

basis  of  relief  in      166 

between  co-tenants        166 

non-payment  of  taxes  as       167 

failure  of  life  tenant  to  insure  as 167 

between  mortgagor  and  mortgagee 167 

against  life  tenant      167 

certain  kinds  not  enjoined 167-168 

in      168 


WATER. 

escaping,  as  a  nuisance  174 

stoppage  of,  as  a  nuisance        175 

pollution  of,  as  a  nuisance 175,  177,  178,  179 

obstruction  of  naviagable,  as  a  nuisance 176 

WIFE. 

(see    HUSBAND    AND     WIFE;     DOWER;    MARRIED 
WOMEN). 

her  equity  to  a  settlement "      15 


252  INDEX 


WILLS. 

(see  ADMINISTRATOR  AND  EXECUTOR;  LEGACY). 

conversion  ordered  in         77,  79 

rights  of  devisees,  where  testator  made  contracts  to  sell 

land .    .    .   : 82 

mistakes  in,  not  remedied  in  equity 95 

agreements  to  compromise,  enforced      119 

WRITS. 

ancient  precedents  for       3 

WRITS  OF  ENTRY. 

as  a  method  of  relief  from  fraud         98,  99,  100 

after  a  special  attachment  at  law 104 

adequacy  of,  as  a  bar  to  equitable  action      163,  171 

WRITTEN   INSTRUMENTS. 

(see    DEEDS;    LOST    INSTRUMENTS;    SEALED  IN- 
STRUMENTS). 

conversion  in 77 

alteration  or  mutilation  of,  relief  from       88 

relief  from  results  of  mistake  in 94-98 

mistakes  in,  inter  vivos 94  et  seq 

when  donor  may  have  relief 95 

wills  not  reformed      95 

how  and  when  mistake  in,  is  relieved 96-98 

evidence  required  to  reform     97-98 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

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